ML19274G170
| ML19274G170 | |
| Person / Time | |
|---|---|
| Issue date: | 07/16/1979 |
| From: | Goldberg J, Rutberg J, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| PROJECT-564M NUDOCS 7908300323 | |
| Download: ML19274G170 (8) | |
Text
47 N.s T1?RA Q poc 6 %u N
g ps s
UtlITED STATES OF AMERICA A 6 'NI
~
NUCLEAR REGULATORY C0fY11SSION
(
g O
d hp BEFORE THE COMMISSI0tl 9
eb In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
)
NRC Docket No. P-564A (StanislausNuclearProject,
)
UnitNo.1)
)
NRC STAFF A'lSWER IN OPPOSITION TO SOUTHERN CALIFORNIA EDIS0N COMPANY'S PETITION FOR COMMISSION REVIEW INTRODUCTION On June 29, 1979, Southern California Edison Company (" Edison") petitioned the Commission, pursuant to 10 C.F.R. S 2.786 of the Commission's Rules of Practice, for formal review of the Atomic Safety and Licensing Appeal Board Decision in this proceeding.~1/Edison, although not a party to this proceeding, is a member of the California Power Pool along with the applicant, Pacific Gas and Electric Company. An intervenor in this proceeding, the California De-partment of Water Resources ("DWR"), has charged that the members of the power pool have acted individually and in concert to restrict competition and that the activities under the license for the Stanislaus Nuclear Project would s
" create or maintain a situation inconsistent with the antitrust laws" within the meaning of section 105c(5) of the Atomic Energy Act.
Edison is appearing specially in respont; to a subpoena decus tecum served on it by the DWR.
For the reasons set for.1 herein, Edison's petition should be denied.
ARGUMENT Comission regulations provide that discretionary review will be sparingly granted in order that the Cormiission will deal with only the most significant jf ALAB-550, 9 NRC (June 15,1979) (hereinafter ALAB-550 with pagination to slip opinion).
2032 2R9 7 908 3 0 0 3JL3
.a,
cases of the many decided by the Appeal Board, i.e., generally those dealing with important procedural issues or other important questions of public policy.E We respectfully submit that the issues presented in this case are not so novel, complex or likely to recur as to warrant the extraordinary Commission review sought.
Beyond that, even if it were conceded for purposes of argument that one or more of the issues presented did rise to such a standard, the Appeal Board's cogent, well-reasoned 36-page decision--affirming the same conclusions reached by the Licensing Board--makes it clear that the issues here have been correctly decided.
The basic reason Edison offers for Commission review of ALAB-550 is the Appeal Board's holding that, as a matter of law, discovery of non-parties is authorized by both the Commission's Rules of Practice and the Atomic Energy Act of 1954, as amended.
Edison believes that the Appeal Board is wrong.
- However, it offers no reasons--apart from the assertion of error itself-- why this question of law 9;c ' ants review by the Commission under the applicable regulations.
No explanation is offered as to why such a holding by the Appeal Board raises "an important procedural issue or otherwise raises important questions of public policy."
2]
In pertinent part 10 C.F.R. S 2.78S(b)(4) provides as follows:
The grant or denial of a petition for review is within the discretion of the Cor.Tnission, except that:
(i) A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves...an important procedural issue or otherwise raises important questions of public policy; (ii) A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual is re necessary for decision in a clearly erroneous manner conti ry to the resolution of that same issue by the Atomic Saft '.y and Licensing Board.
2032 M
Nevertheless, even conceding, arguendo, that this issue is an important one, the manifest correctness of the Appeal Board's disposition of it renders Com-mission review unnecessary.
At pages 4-11, ALAB-550 contains a comprehensive analysis of the language and history of the flRC's subpoena rules N which, along with the Supreme Court's decision in flLRB v. Wyman-Gordon Co.,N emonstrates quite clearly that flRC d
subpoenas can require the production of discovery documents in a case such as this one.
Similarly, the Appeal Board's analysis N of section 161c. of the Atomic Energy Act shows that it provides a specific basis for the Conmission's rules authorizing the issuance of subpoenas to non-parties during the discovery phase of a proceeding.
Finally, the Board's decision demonstrates (at pages 16-19) why Federal Maritime
- v. Anglo-Canadian Shipping Co.,6f relied upon by Edison, is inapplicable to the situation here. The Atomic Energy Act provides specific authority to issue sub-poenas in section 161c.
The Anglo-Canadian case involved the use of the general rulemaking authority of the Federal. Maritime Commission in an attempt to justify 3/
10 CFR S 2.720 and 10 C.F.R. S 2.740(e)(3) which provide,'in pertinent' part:
On applia tion by any party, the designated presiding officer...
Will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence.
(2.720) and This section [" General provisions governing discovery"] does not preclude an independent reouest for issuance of a subpoena directed to a person not a party for production o documents and things.
~
~
'(2 740Tf)(3) (emphasis acced)).
See ALAB-550 at 10-11.
4]
394 U.S. 759 (1969) 2032 26!
5/
ALAB-550 at 11-19.
6]
335 F.2d 255 (9th Cir.1964).
a rule authorizing the issuance of subpoenas for discovery purposes. A specific statutory authoriiition analogcos to section 161c. was not present.
Unlike the first ground advanced for review which,is a pure question of law, Edison's other two arguments involve mixed questions of law and fact, thus bringing into play subparagraph (b)(4)(fi) of section 2.786:
(ii) A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and :.icensing Board.
With respect to the breadth and burdensomeness of the subpoena categories, Commission review is clearly unwarranted under the standards set forth in the regulation since this matter does not raise an important legal or policy question as contemplated by 10 S 2.786 and is not. a question of fact resolved by the Appeal Board in a clearly erroneous manner contrary to the Licensing Board's resolution.
In fact, the Appeal Board's decision demonstrates why uiis issue involves a mixed question of law and fact which was resolved by the Appeal Board in the same manner as the Licensing Board.
As stated by the Appeal Board after its close examination of Edison's objections in light of the entire record:
[T]he transcript of the all-day prehearing conference on January 24 (which was devoted exclusively to the subpoena) reflects that the Board arrived at its result on the various categories of documents after a careful and thoughtful analysis fully consistent with governing doctrine. 7_/
J/
ALAB-550 at 24.
2 0 3 2
!!,',~~>
The question of conditioning the subpoena on the advancement to Edison of its cost of compliance, as the Appeal Board decision demonstrates,8f involves the. application to the facts of this case of the governing test of whether or not the costs of compliance by Edison are reasonably incident to the conduct of Edison's business. Both the Appeal Board and the Licensing Board concluded that the subpoena categories cover documents which are df sctly related to Edison's business E and relevant to the issues in this proceeding. N Both Boards also concluded, in addition, that the costs involved in producing the documents do not exceed those which Edison reasonably may be expected to bear as costs of doing business.b Edison cites United States v. Farmers and fierchants Bank N for the pro-position that a subpoenaed non-party (bank) should not have to bear anything more than nominal costs of compliance with a government (IRS) sunnons.
That case, however, turned on the court's conclusion that the bank's cost of compliance was not a cost of doing business as a bank, E whereas both the Appeal Board 8f M.at32-34.
_9]
Id. at 33-34.
p,y gg3 J_0f M. at 20-26.
0 11f M. at 32-34.
J2f 397 F.Supp. 418 (C.D. Cal.1975).
l_3/ Id. at 420.
3 h44$ a g
"-T
6-and the Licensing Board factually concluded that in the case here the cost of Edison's compliance was a cost of Edison's doing business. E C0!iCLUSI0t1 The Staff submits that the instant petition fails to raise a question of fact, law or policy likely to be of recurring importance in Comission practice,
that in any event the Appeal Board's exhaustive, well-reasoned decision is entirely consistent with the plain meaning of the Act, the regulations, and the relevant court decisions, and that Comission review is unwarranted.
For these reasons, the f1RC Staff submits that Edison's petition for Commission review of ALAB-550 should be denied.
Respectfully submitted,
/
Joseph Rutberg Jack R. Goldberg
/
Director and Chief Counsel Cbunsel for fiRC Staff
/
Antitrust Division
.-f
/
/
Office of Executive Legal cv.fva m /
/ (6/9 Director
/
7 Benjamin H. Vogler Deputy Director Antitrust Division, OELD Dated at Bethesda, Maryland this 16th day of July, 1979 20322. M A
4 14] ALAB-550 at 34.
J
UNITED STATES OF AMERICA NUCLEAR REGULATORY COl', MISSION BEFORE THE COMMISSION In the Matter of
)
)
PACIFIC GAS AND ELECTRIC
)
NRC Docket No. P-564A COMPANY
)
(Stanislaus Nuclear Project,
)
Unit No.1)
)
CERTIFICATE OF SERVICE I her'1/ certify that copies of NRC STAFF ANSWER IN OPPOSITION TO SOUTHERN "J. 1FORNIA EDISON COMPANY'S PETITION FOR C0rdMISSION REVIEW 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 Nuclear Regulatory Commission's internal mail system, this 16th day of July,1979.
Marshall E. Miller, Esq., Chairman George Spiegel, Esq.
Atomic Safety and Licensing Board Robert C. McDiarmid, Esq.
U.S. Nuclear Regulatory Commission Daniel I. Davidson, Esq.
Sandra J. Strebel, Esq.
Washington, D.C.
20555
- Peter K. Matt, Esq.
Seymour Wenner, Esq.
Bonnie S. Blair, Esq.
Atomic Safety and Licensing Board Thomas C. Trauger, Esq.
4807 Morgan Drive 2600 Virginia Avenue, N.W.
Chevy Chase, Maryland 20015 Washington, D.C.
20037 Edward Luton, Esq.
Evelle J. Younger Atomic Safety and Licensing Board Attorney General of California U.S. Nuclear Regulatory Commission Michael J. Strumwasser Washington, D.C.
20555
- Deputy Attorney General of Cali fornia Donald A. Kaplan, Esq.
555 Capitol Mall, Suite 550 P.O. Box 14141 Sacrancnto, California 95814 Washington, D.C.
20044 Morris M. Doyle, Esq.
Jerome Saltzman, Chief William H. Armstrong, Esq.
, Antitrust & Indemnity Group Terry J. Houlihan, Esq.
U.S. Nuclear Regulatory Commission Meredith J. Watts, Esq.
McCutchen, Doyle, Brown & Enersen Washington, D.C.
20555
- Three Embarcadero Center, 28th Floor Philip A. Crane, Jr.
San Francisco, California 94111 Glen West, Esq.
Richard L. Meiss, Esq.
H. Chester Horn, Jr., Esq.
Pacific Gas & Electric Company Deputy Attorney General 77 Beale Street Office of the Attorney General San Francisco, California 94106 3580 Wilshire Blvd., Suite 800 Los Angeles, California 90010 Docketing and Service Section Office of the Secretary olarice Turney U.S. Nuclear Regulatory Commission 3900 Main Street Riverside, Cali fornia 92521 Washington, D.C.
20555 2032 265
~
7-
Atomic Safety and Licensing Board U.S, fluclear Regulatory Commission Wash Hqton, D.C.
20555
- Chain in Hendrie U.S. feuclear Regulatory Commission Washington, D.C.
20555
- Commissioner Gilinsky U.S. fluclear Regulatory Commission Washington, D.C.
20555
- Commissioner Kennedy U.S. fluclear Regulatory Commission Washington, D.C.
20555
- Commissioner Bradford f.
U.S. fiuclear Regulatory Commission l
Washington, D.C.
20555
- i Commissioner Ahearne e'
U.S. fluclear Regulatory Commission Washington, D.C.
20555
- Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. fluclear Regulatory Commission Washi ngton, D.C.
20555
- Richard S. Salzman Atomic Safety and Licensing Appeal Board I
U.S. fluclear Regulatory Commission l
Washington, D.C.
20555
- Michael C. Farrar, Chairman Atomic Safety and Licensing Appeal U
fuclear Regulatory Commission A
Washington, D.C.
20555 *
(/dack R. Goldberg I
Counsel for f1RC Staff i
Samuel J. Chilk Secretary of the Commission U.S. fluclear Regulatory Co=nission l
Washi.igton, D.C.
20555
- 2032 ?%
,,