ML19249D754
| ML19249D754 | |
| Person / Time | |
|---|---|
| Site: | 05000599, 05000600 |
| Issue date: | 07/23/1979 |
| From: | Christenbury E, Goddard R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7909250344 | |
| Download: ML19249D754 (11) | |
Text
NRC PUBLIC DOCU.\\1ENT ROOM M
UNITED STATES OF AMERICA NUCLEAR REGULATORY COM:'ISSION 7/23/79 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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NUCLEAR REGULATORY COMMISSION STAFF'S MOTION FOR RECONSIDERATION OF LICENSING BOARD'S DENIAL 0F NRC STAFF'S " MOTION TO DEFER SPECIAL PREHEARING CONFERENCE" On July 10, 1979, the Licensing Board issued an order scheduling the Special Prehearing Conference in the captioned proceeding for August 15-16, 1979.
On July 13, 1979, counsel for NRC Staff moved the Licen::ing Board to defer that conference for at least one month. That motion was denied by the Licen-sing Board by Order dated July 18, 1979. The NRC Staff respectfully requests reconsideration of that denial, and specifically requests a continuance of the Special Prehearing Conference for a period of 30 days, up to and including September 14, 1979.
The reasons for postponement se. forth in the Staff's Motion were threefold:
(1)
Both counsel assigned to, and familiar with, the captioned proceeding will be ir.volved in another hearing on the dates set forth by the Licensing Board; (2) Additional time might be used by all parties to sharpen con-tentions through a process of negotiation; (3) All other parties who could be contacted by NRC Staff indi-cated either a desire for such a delay, or at least no opposition to the NRC Staff's request.
7 909 2 5 0M4' 1025 172
The Staff respectfully submits that in the present posture of this case, each of these reasons, standing alone, constitutes a sufficient basis for a Licensing Board to grant such a Motion. The Carroll County facility has been impacted by the " Interim NRR Organization to Deal With Impacts of TMI-2 and Other NRR Priority Tasks," SECY-79-344, dated May 19, 1979. As stated therein, the Standardization Review of the Westinghouse RESAR-412 Preliminary Design Approval (for Carroll County) will be delayed "well into 1980," (SECY-79-344, Enclosure 3 at 4) and the Carroll County construction permit will be delayed "12 months" by this action (Id., Enclosure 3 at 6).
In short, there is no reason.to proceed with excessive haste given the above circumstances.
On the other hand, the NRC Staff will suffer specific prejudice if the motion for postpor.ement is not granted, and new counsel must be assigned to prepare for and attend the special prehearing conference for NRC.
It is the practice of the Hearing Division of the Office of the Executive Legal Director to assign at least two staff counsel te each contested proceeding because of the magnitude and' complexity of these cases and because this practice minimizes k
the likelihood that factors such as workload and absence will leave the Staff unable to...eet a particular schedule. Because of the complexity of the cases assigned, and the fact that all attorneys in the hearing division have several active cases, it is not practicable to substitute counsel on any regular basis to cover particular hearing dates or answer particular pleadings.
This long-standing practice of assigning responsibility for all aspects of a proceeding to a team of attorneys is a rational use of the Staff's limited legal resources.
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A motion for continuance is of course addressed to the sound discretion of the Board.-1/
In circumstances similar to those here, however, it has been held that denial of a continuance, where assigned government counsel was unable to participate due to prdviously scheduled litigation, constituted an m
abuse of such discretion. Harris v. Akindulureni, 342 A.2d 684 (D.C. App.
2/
1975).-
In the instant case, both assigned NRC Staff counsel, who have participated in the Carroll County proceeding since the pre-docketing stage, are engaged in a contested licensing proceeding on the dates now set for the Special Pre-hearing Conference.
It-is respectfully submitted that the desirability of maintaining a continuity of experienced counsel on the Carroll County case, which is in the early stages of what will clearly be a protracted and contested licensing action, clearly outweighs any detriment ensuing from a one month delay in scheduling the Special Prehearing Conference. This is especially true where, as here, the delay is not opposed by any party.-3/
In addition to assuring the availability of Staff counsel, the requested con-tinuance would enable the Staff to meet with petitioners to discuss refine-1/ In exercising this discretion, the Board should be mindful of the laaguage of Paragraph I(b) of Appendix A to 10 CFR Part 2 which states:
In fixing the time and place of any conference, including prehearing conferences,... due regard shall be had for the convenience and necessity of the parties, petitioners for leave to intervene, or the representatives of such persons, as well as of the Board members, the nature of such conference or adjourned session, and the public interest.
2/ A copy of that decision is enclosed for the convenience of the Board and parties.
3/ As indicated in our original motion, two petitioners were not contacted, by the Staff.
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ment of contentions and possibly reach stipulations regarding admissibility of contentions and other matters. Such negotiations will have the salutary effect of ensuring a more focused and productive special prehearing conference than might otherwise be possible,.
Accordingly, NRC Staff moves for reconsideration of the Licensing Board's Order denying the requested continuance, and asks that the Licensing Board grant a continuance of the Special Prehearing Conference for a period of 30 days up to and including September 14, 1979.
Respectfully submitted, N
Edward S. Christenbury Director and Chief Counsel Hearing Division p
Richard J. Goddard Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of July, 1979.
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42 ATLANTIC REPORTER, 2d SEkIES
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was by itself sufficient to require gran.rq
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Milton HARRIS and the District of Cclum.
of a continuance in the case, and failure v.,
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i bla, a Municipal Corporation, Appellants, grant continuance constituted an al,um,,g th tri i
'iscretion in case where District of Coh:.
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- " t represented and plaintiff wo
,'.g g Isaac A. AKINDULURENI, Appellee.
awarded j. dgment of $85,000; under the
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No. 8996.
circurnstances the District of Columbia wa, ce c District of Coiumbia Court of Appeals.
not required to assign another attorney to p,e.e, nCC C C C TPo 4
..ich f
Argued April 10,1075.
tion counsel's of f. ice to leave the case, an u tii Decided June 23,107.~e.
apparently lengthy and complex one, m
, iet g Itchenring Pn Rane Dcnied July OS.1975.
charge of assistant corporation connut who handled it at first trial was reasonat.:
j and was a rational use of government *,
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limited Icgal resources.
I Action was brought seekm.g to recover ww I
damages for assault and battery, false ar-31urr rest, false imprisonment and malicious
- 3. Courts c=444.7 p,;y prosecution. The Superior Court nf the Given fact that two trial judges ex.
W. E District of Columbia, Tim A!urphy, plicitly recognized that scheduling problem ton. I en-tered judgment for plaintiff for tea,u.a),
typified by case, in which assistart corpo.
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and District of Columbia and police officer ration counsel to whom case had been as.
appealed. The Court of Appeals held that signed was unable, because of prior court y
fact that assistant corporation counsel to commitments, to appear at trial, was a whom case had been assigned was unable bona fide and substantial one for the of.
g;eg because of prior court commitments to ap-fice of the corporation counsel, and thit p~. e ~
pear at trial, with the result that case was trial judges rejected suggestions of plain.
tried without counsel appearing for the
,iff that District of Columbia was acting District of Columbia, was by itself suffi-l'E:
in disregard of i s obligations to the court, t
cient to require granting of continuance. denial of continuance without inquiry ei-Th; ther into the possibility of rescheduling the llart Reversed and remanded for a new
- trial, case with a minimum of additional delay g,n,3 or into matter of any specific prejudice artee which plaintiff might suffer by the delay ype
- 1. Courts C=444.7,445(27) was improper.
sue:
Afotion for continuance is addressed to
- 4. Courts W44.7 knts sound discretion of trial court and its rul-
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ing will be reversed only for a c! car abuse In an extreme case the right of a liti.
of discretion, but the court nay not be so gant to have his case finally disposed of I. r persistent in its endeavors to keep its cal-might well justify forfeiting government's l
ender current as to deprive the parties of case because of government's inadequate au j
their right to a fair hearing.
personnel resources.
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- 2. Courts C=444.7
- 5. Courts C=444.7 ut, i
Fact that assistant corporation counsel Action against District of Columbia y,g i
to whom action seeking damages for, inter-and police officer seeking to recover dam.
.se Go alia, false arrest and malicious prosecution ages for assault and battery, false arrest.
had been assigned was unable, because of false imprisonment, and malicious prosecc.
i prior court commitments, to appear at trial tion, was not such an extreme case that n,,.
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HARRIS v. AKINDULURENI D. C.
685 cite as $42 A.2d CR4 s
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.ghts of plaintiff to have his case finally The instant case was first tried to a
, med of would justify forfeiting the jury, after several pretrial delays,3 in July 9,trict's case because assistant corpora-1974 A mistrial was declared upon the in-
..:n counsel who handled first trial of the ability of the jury to agree on a verdict.
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me could not appear at second trial due to
- Shortly thereafter appelice moved, without y
- hcr trial commitments, since, although opposition from the D. C. Government, to ee claim was an old one, there was advance retrial of the case, and on Septem-
.te ent neither such inordinate delay nor her 5,1974, the parties were notified that 3
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sh extreme prejudice to plaintiff as to trial had been schedu!cd by the trial court's i
ntify disregard of the rights of the Dis-Assignment Commissioner for October 3, j
- r st to present an eifective defense.
1974.
1 Because the Assistant Corporation Coun-David P. Sutton, epsst. Corp. Counsel, sel who had tried the case was already I
rashington, D. C., with whom C. Francis scheduled for jury trials on October 1, 8,
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%rphy, Corp. Counsel, Louis P. Robbms, 11,17,22 and 30, appellants promptly noti-I Principal Asst. Corp. Counsel, and Richard fied counsel for appellee of their intention to seek a continuance.8 At the hearing on
'N. Barton, Asst. Corp. Counsel, Washmg-an. D. C., were on the brief, for appe!! ants.
that motion, held on September 19, 1974, gg g
g 5ti!!cr W. Marshall, Washington, D. C.,
court that his trial scheduled for October
.ith whom Charles C. Parsons, Washing-1st would run over into October 3rd, and u.n, D. C., was on the brief, for appe!!ee.
that the trial of the instant case would probably conflict with the case alread" set Eefere FfCKLING, KERN and HAR.
for him on October Sth.5 The m k!S, Associate Judges.
denied on the ground that another attorney from the Office of the Corporation Coun-I PER CURfAM:
sel should be assigned to try the case.e j
The District cf Columbia and Stilton On the date of trial the attorney as-
.1 Ilarris, a D. C. Police Officer, appeal signed to the case was in fact engaged in M
hom a judgment entered against them 1 another trial, and air. Earnest, a senior at-4 after a jury trial at which counsel for torney from the Office of the Corporation
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8tpellants ' was not present. The sole is-Counsel, appeared for the government and we raised for our consideration on this ap-moved before two different judges for a
- <alis the propriety of the denial of appel-continuance. The motion was denied by
'3 ants' motions for a continuance of the both judges on the ground that the govern-trial.
ment must bear the responsibility for its i
L Damsces in the arnount of $<,000 were 4.
.tl*o a<sen vi us a ground for a continuance
"ded on appellee's complaint for assault was the far. that the transcript of the first and battery, false arrest, false imprisonment trial had not yet beer. delivered.
8:d utalicious prosecution.
- 5. The first trial of the case took seven days.
APDellants were jointly represented by a twmber of the Office of the Corporation Coun.
- 6. The following day counsel for appellants =as I
nel notified that their medical witness who had ti testified at the first trial would be out of
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g AtW!ee's action was filed in the t'nited the country for a month beginning October l
8'8tes District Court for the District of
- 4. the day after the retrint wn, sche.fub d to
'A olumbia on.tugu*t *.% 197. and certified to begin.
.t ppellan ts c: sic nioved for a emo-Superior Court on January 13.1173 Two t retritt continuance tinuance, which was.h uied by the same judge were granted, one at the Pequest of each party.
who heard the first ruotion.
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!ack of sufficient manpower to proceed schedule of cases assigned to the Assistant 2"Y with cases as they are scheduled. These Corporation Counsel in charge of the case 8M
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judges reasoned that they could not allow created a conflict between the trial of this w,
j the failure of the !cgislature to a*ppropriate case and other cases aircady set for trial.
gy, 3
adequate funds for the Office of the Cor-It is also uncontroverted that the conflict f.usic j
poration Counsel to impede the prompt dis-was not the fault of appc!! ants' counsel, position of cases.
but a result of a scheduling process over
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which he had no control. It is also clear h*'
j Its final motion denied, the government's that counsel acted prom,,tly and diligently attorney announced that he did not mtend
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in seeking relief when the conflict was
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to go forward in the absence of the partic-made kn.own to him.
ular Assistant Corporation Counsel to whom the case had been assigned and who We do not think the government was re.
I was familiar with it. He then withdrew quired under the circumstances here to as.
l from the court. Appe!!ee presented his sign anccher attorney to defend the case, j
case to the jury, and judgment was entered The desire of the Corporation Counsers on its verdict in favor of appellee.
Office to leave this case, an apparently lengthy and complex one, in the charge of t
[1] A motion for a continuance is of the Assistant Corporation Counsel who I
0 rse addressed to the sound discretion of handled it at the first trial is reasonable, the trial court, and its ruling will be re-and is part of a rational use of the govern.
versed only for a c! car abuse of discretion.
ment's limited legal resources. In addition.
Evening Star Newspaper Co. v. Covington, it was demonstrated that no other Assitt.
D.C. App.,323 A.2d 718,722 (1974); ' D. C.
ant Corporation Counsel could be assigned Transit System, Inc. v. Young, D.C. App.,
to the retrial of the instant case without l
293 A.2d 488,490 (1972). Nonetheless, the sacrifice of other pressing cases.' Set court may not be so persistent in its en.
II'clchcr v. Unitcd States, 213 F.2d 539 l
deavors to keep its calendar current as to (9th Cir.1954).
deprive the parties of their right to a fair w
hearing. Focusing, as we must, on only
[3-5) There is no evidence in the ree-the particular facts and circumstances of ord of a lack of good faith or of due dili-this case, we are of the view that a contin-gence on A part of the government in uance should have been granted, and that this case. On the contrary, two trial failure to do so constituted an abuse of Judges explicitly recognized that the sched-discretion.
uling problem typified by this case is a bona fide and substantial o,e for the Of-
[2] The fact that counsel to whom the fice of the Corporation Counsel, and to case had been assigned was unable, because jected suggestions by appellee that the gav-of prior court commitments, to appear at ernment was acting in disregard of it; ob-the trial was by itself sufficient to require ligations to the court. Given that fact, the the granting of a continuance in this case.2 trial court acted improperly in denying a Sec Budget Laundry Co. v. Munter, 450 continuance without an inquiry either into Pa.13, 298 A.2d 35 (1972). It is uncon-the possibility of rescheduling the case troverted on the record before us that the with a minimum of additional delay or of
- 7. For this reason we find it unnecessary to of the case was carr3 n:t a esseload af approxi-i decide whether the other two factors present mately 1.~4. a ty picni caseload for Assistants, in this case--the ah ent mitness and the late anil that the Civil Prute-!:ngs Disi; ion had '$
transcript-would also justify granting a con-other jury tris!s in the Superior Court ahine tinuance.
scheduled for the tnanth of October.
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- 8. 3fr. Earnest represented to the murt that the.tssistant Corturation Counut in charge 1025 173
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HARRIS v. AKINDULURENI D. C.
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q specific prejudice which appe!!ce tried yet a third time; but, nonetheless, i
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-ght suffer by a delay.'
under the circumstances here we have no j
M*e recogynize the trial court's need al-alternative but to reverse the judgment and 1
.ns to insist un prornpt dispatch of its remand the case for a new trial.
Niiness; we regret that this case must be
. So ordcred.
e to an extreme enne the right of a litigant to old one, there was present neither such inordi.
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t.are his esse finally dlstesed of might well nate delay nor such extreme prejudice shown p.rify forfeiting the government's case, as es appellee as to justify disre:;ard to the right
... done here, beesuse of its inadequate per-of the Listrict of Columbia to present an ef-
. onel rerources. This was not, however, such fectise defense.
i an estreme case. Although the claim was an
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UNITED STATES OF AMERICA NUCLEAR REGULATORY t'0MMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
l Docket Nos. S50-599 COMMONhcALTH EDIS0N COMPANY, et_ al.
)
S50-600 (Carroll County Site)
)
NOTICE OF APPEARANCE _
Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 10 CFR 52.713(a),
the following information is provided:
Name
- Edward S. Christenbury Address U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C.
20555 Telephone Number
- (301) 492-7201 Admissions United States Suprem Court United States Court of Appeals for the District of Columbia Circuit Supreme Court of the State of Tennessee Name of Party NRC Staff U.S. Nuclear Regulatory Conmission N
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Edward S. Christenbury
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Director & Chief Counsel Hearing Division Dated at Bethesda, Maryland this 23rd day of July,1979 1025 iC3
UNITED STATES OF AMERICA fiUCLEAR REGULATORY C0:'.MI5SION BEFORE THE ATOMIC SAFETY Afl0 LICENSING BOARD In the Matter'of
)
COMMONWEALTH EDISON COMPANY, et al.
Docket !!os. S50-599
- ~ - -
- S50-600 (CarrollCountySite)
)
3 CERTIFICATE OF SERV' ICE I hereby certify that copies of " NUCLEAR REGULATORY C0ftiISSION STAFF'S MOTION FOR RECONSIDERATION OF LICENSING BOARD'S DENIAL OF NRC STAFF'S ' MOTION TO DEFER SPECIAL PREHEARING CONFEREllCE'" and " NOTICE OF APPEARANCE" for Edward S. Christenbury, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the fluclear Regulatory Commission's i,nternal mail system, this 23rd day of July,1979:
John F. Wolf, Esq., Chairman Mr. John W. Cox, Jr.
3409 Shepherd Street Jo Daviess County Ad Hoc Committee Chevy Chase, Maryland 20015 on fluclear Energy Information 906 Campbell Street
- Mr. Glenn 0. Bright Galena, Illinois 61036 Atomic Safety and Licensing Board U.S. fluclear Regulatory Commission Mr. James C. Schwab Washington, D.C.
20555 State Coordinator Iowa Public Interest Research Group, Inc.
Dr. Robert L. Holton 36 Mamorial Union, Icwa State University School of Oceanography Ames, Iowa 50010 Oregon State University Corvallis, Oregon 97331 Nancy J. Bennett Assistant Attorney General Philip P. Steptoe, Esq.
Environmental Control Division Isham, Lincoln & Beale 188 West Randolph, Suite 2315 One First National Plaza, 42nd Floor Chicago, Illinois 60601 Chicago, Illinois 60603 Mr. Jim Dubert Thomas J. Miller c/o Iowa Socialist Party Attorney General cf Iowa 280135 West Street State Capitol Complex Ames, Iowa 50010 Des Moines, Iowa 50319 1025 b01 9
- Atomic Safety and Licensing Mr. James L. Runyon Board Panel 1316 - Second Avenue U.S. fluclear Regulatory Commission P. O. Box 307 Washington, D.C.
20555 Rock Island, Illinois 61201
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- Atomic Safety and Licensing Mr. Edward Gogel Appeal Board Panel 6105 W. Winthrop U.S. fluclear Regulatory Commission Chicago, Illinois 60660 Washington, D.C.
20555
- 00cketing and Service Section Office of the Secretary U.S. fluclear Regulatory Commission Nashington, D.C.
20555 s
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-4\\.O Steven C. Goldberg
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Counse'i for NRC Staff
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