ML19290B957
| ML19290B957 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 12/14/1979 |
| From: | Chanania F, Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19290B958 | List: |
| References | |
| NUDOCS 7912260081 | |
| Download: ML19290B957 (31) | |
Text
y' 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
) NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit
)
Nos. I and 2)
)
)
TEXAS UTILITIES GENERATING
) NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
I flRC STAFF RESPONSE TO PETITION OF HOUSTON LIGHTING & POWER COMPANY FOR DIRECTED CERTIFICATION AN9 REVIEW 0F LICENSING BOARD'S ORDER DENYING MOTIONS FOR
SUMMARY
DECISION Joseph Rutberg Fredric D. Chanania Chief, Counsel and Director, Counsel for NRC Staff Antitrust Divisice Office of the Exect.ve Legal Director Ann Hodgdon
'ounsel for NRC Staff Roy P. Lessy, Jr.
Counsel for NRC Staff Michael B. Blume Counsel for NRC Staff 1731 236 09 /
y 7912 260 m-
o TABLE OF CONTENTS TABLE OF AUTHORITIES CITED ii I.
INTRODUCTION 1
II. BACKGROUND 3
III. STAFF RESPONSE TO HL&P POSITION..
4 A.
Certification of HL&P Question Is Not Warranted......
4 1.
NRC Standards For Directed Certification of Questions by Appeal Board..
5 2.
The Appeal Board Should Not Direct Certification 6
B.
The Licensing Board Properly Refused to Aoply Collateral Estoppel 9
1.
Legal Standards for Application of Collateral Estoppel 9
2.
Application of Collateral Estoppel Is Not A p p ro pr i a t e......................
13 IV. CONCLUSION 24 1731 237 (i)
TABLE OF AUTHORITIES CITED s.
I.
COURT CASES:
Page Azalea Drive-In Theatre, Inc. v. Hanft, 540 F.2d 713 (4th Cir.1976).
23 Blackwelder v. Millran, 522 F.2d 776 (4th Cir. 1975) 12,23 Cities Service Gas Co. v. Federal Power Commission, 535 F.2d 1278 (D.C. Cir.1976) 12 Commissioner v. Sunnen, 333 U.S. 591 (1948)...................... 1 0,1 1 Cronvell v. County of Sac, 94 U.S. 351 (1876) 11 Crowe v. Leeke, 550 F.2d 184 (4th Cir. 1977) 11 Finnerman v. McCormick, 499 F.2d 212 (10th Cir.1974).....
12 i
FTC v. Sperry & Hutchinson Co.,
405 U.S. 233 (1972)...........
15 Garner v. Giarrusso, 5 71 F.2d 1330 ( 5th Ci r. 1978 )..................
13 Gulf Oil Corp. v. FPC, 563 F.2d 588 (3rd Cir.1977) 12 Haize v. Hanover Insurance Co.,
536 F.2d 576 (3rd Cir.1976) 11 j
In re Yarn Processing Patent Validity Litigation, 498 F.2d 271 (5th Cir. 1974) 12 James Talcott, Inc. v. Allahabad Bank, Ltd.,
j 444 F.2d 451 (5th Cir.), cert. denied 4 04 U. S. 9 4 0 (19 71 ).......................
22 Johnson v. United States, 576 F.2d 606 (5th Cir. 1978) 11 Lawlor v. National Screen Service Corp.,
34 9 U. S. 322 (19 5 5 ).......................
11 Neaderland v. Commissioner of Internal Revenue, 424 F.2d 639 (2d Cir. 1970), cert. denied 400 U.S. 56 (1970) 13 New York State Teamsters Conf. Pension and Retirement Fund v.
Pension Benefit Guaranty Corp.,
591 F.2d 953 (D.C. Cir.1979)...
23 (ii) 173 238
s Pacific Seafarers, Inc. v. Pacific Far East Line, Inc.,
404 F.2d 804 (D.C. Cir. 1968), cert, denied 39 3 U. S. 10 9 3 (19 69 ).......................
24 Peffer v. Bennett, 523 F.2d 1323 (10th Cir.1975)..................
12 Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645 (19 79 )...............
11 Securities and Exchange Commission v. Everest Management Corp.,
466 F.Supp. 167 (S.D.N.Y. 1979).
13 Texaco, Inc. v. Hickel, 437 F.2d 637 (D.C. Cir. 1970) 12 Tipler v. E.I. duPont de Nemours & Co.,
443 F.2d 125 (6th Cir.1971)..
10 United States v. Utah Construction and Mining Company, j
384 U.S. 394 (1966) 9 West Texas Utilities Co. v. Texas Flectric Service Co.,
470 F.Supp. 798 (N.D. Tex.1979), appeal pending.
3,4,8,14,15,17,18 Winters v. Lavine, 574 F. 2 d 46 (2 d Ci r. 19 78)....................
11 I
6 I
i i
(iii)
I, 1731 239 i
i.
II.
NRC CASES:
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974) remanded on other grounds, CLI-74-12, 7 AEC 203 (1974)..
9,10,12,16,19 Consolidated Edison Co. of New York, Inc.
(Indian Point Station, Unit No. 2), 5 NRC 1156 (1977) 10 Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB 452, 6 NRC 892 (1977)....................
18,21 LB P 39, 2 NRC 29 (197 5 )....................
21 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), LBP-77-20, 5 NRC 680 (1977) 9 Florida Power & Light Co. (St. Lucie Plant, Unit No. 2),
CLI-78-12, 7 NRC 939 (1978) 15 ALAB-420, 6 NRC 8 (1977).....................
15 Houston Lighting & Power Co. (South Texas Project, Unit Nos.1 and 2), CLI-77-13, 5 NRC 1303 (1977) 9,16 Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-353, 4 NRC 381 (1976)............
6 Louisiana Power & Light Co. (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974)......
5 Power Authority of the State of New York (Greene County Nuclear Power Plant), ALAB-439, 6 NRC 640 (1977).........
6 Puget Sound Power & Light Co., et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572 (Nov. 20,1979) 5 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Stations, Units 1 and 2), ALAB-405, 5 NRC 1190 5,6 i
(1977).
6 l
ALAB-393, 5 NRC 767 (1977)....................
Public Service Company of New Hampshire (Seabrook Station, 9
Units 1 a nd 2), CLI-78-1, 7 NRC (1978)..............
5 AL AB-2 71, 1 NRC 478 (1975 )....................
Toledo Edison Co., et al. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3),
i ALAB-560, NRC (Sept. 6, 1979) 8,15,18,20,21,22 ALAB-378, 5 NRC 557 (1977 )................
1,8,16,20 l
ALAB-314, 3 NRC 98 (1976) 6 LBP-76-40, 4 NRC 561 (1976) 20 (iv) 1731 240 P
United States Energy Research and Development Admin.
(Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976)............................
7 III.
STATUTES Atomic Energy Act of 1954, as amended:
5105a, 42 U.S.C. 52135a 14,15 5105c, 42 U.S.C. 52135c 14 5105c(5), 42 U.S.C. 52135c(5) 15 Federal Trade Commission Act:
55,15 U.S.C. 845 14,15 Federal Power Act, 5202(b),16 U.S.C. 5824a(b)..........
21 Sherman Act:
51, 15 U. S. C. 51 4,14,18 52,15U.S.C.52.........................
14,18 IV.
OTHER AUTHORITIES:
NRC Rules of Practice:
10 C FR 5 2. 714 a..........................
5 10 C FR 5 2. 718 ( 1 ).........................
3,4,5 10 C FR 5 2. 7 30 ( f).........................
4,5 Transcript of Proceedings, 288, 299 (June 1,1979)
(i n thi s combi ned doc ket)....................
6 1B Moore's Federal Practice (2d ed.1974)
Para. 0.405[1]..........................
11 Fara. 0.443[1]..........................
11 Para. 0.443[2]..........................
12 Para. 0.448 12 2 Davis, Administrative Law Treatise, 118.12 (1958)...
16 K. Davis, Administrative Law Text, 363 (3rd ed.1972).......
16 (v) 1731 241
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 80ARD In the fiatter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PilRLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPAtlY
)
(South Texas Project, Unit
)
Nos. I and 2)
)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
?!RC STAFF RESPONSE TO PETITION OF HOUSTON LIGHTING
& POWER COMPANY FOR DIRECTED CERTIFICATION AND REVIEW 0F LICENSING BOARD'S ORDER DENYING '10TIONS F0P Sil"f1ARY DECISION I.
INTRODUCTION The NPC Staff hereby responds to the petition of Houston Lighting & Power Company (hereinafter "HL&P") filed on November 9,1979, which requests the Atomic Safe.ty and Licensing Appeal Board (" Appeal Board") to review, by directed certification, an Order of the Atomic Safety and Licensing Board
(" Licensing Board").I/ That Order denied both HL&P's and Texas Utility Generating Company's ("TV") motions for summary disposition.
HL&P, in its 1/
The Licensing Board's Order was dated October 5, 1979, and was docketed on October 9,1979 (hereinafter " Order").
1731 242
' Petition,b seeks directed certification on and reversal of the Licensing Board's Order concerning only one of several areas addressed in that Order -
the issue of application of collateral estoppel against Central and South West Corporation ("C&SW").E The question presented by HL&P for certification is:
Should findings of fact made by a U.S. District Court be accorded defensive collateral estoppel effect against a party to the District Court trial in an NRC antitrust proceeding to preclude such party's relitigation of the same factual issues?
Pursuant to the Appeal Board's Order of November 13, 1979, the Staff response addresses the issues of certification of the question set forth in HL&P's petition and of application of collateral estoppel against C&SW.O
-2/
Houston Lighting & Power Petition for Directed Certification and Review of the Licensing Board's Order Denying Motions for Summary Decision, at p.2,3 (Nov. 9,1979) (hereinafter referred to as "HL&P Petition").
3]
The Central and South West Corporation is a public utility holding company, having as its subsidiaries Central Power & Light Company, West Texas Utilities Company, Public Service Company of Oklahoma, and Southwestern Electric Power Company.
All C&SW subsidiaries are intervenors in the Comanche Peak docket; Central Power & Light alone is a co-applicant and co-licensee in the South Texas docket.
For the purposes of this response, the Staff is assuning that collateral estoppel, if applicable to one of the subsidiaries or the holding company itself (which the Staff refutes),
would be applicable to all five entities under the concept of privity.
y As concerns the Appeal Board's Order of November 13, 1979, the Staff presumes that the " merits of the controversy" referred to therein relate to the collateral estoppel question, upon which HL&P seeks certification.
The HL&P petition has not renewed any other arguments for review of the Licensing Board's refusal to dismiss the proceedings.
TV argued for application of res judicata and collateral estoppel, and for tennination of proceedings in its motion for summary disposition.
Certifi-cation has not been sought on the Licensing Board's detemination that res judicata is not applicable against C&SW, nor on other issues raised and decided against TU. The Staff continues to maintain that res judicata is not appropriate, given different causes of action before the District Court and the NRC in this operating license antitrust hearing.
See Answer of the NRC Staff in Opposition to Motions for Full or Partial Summary Judgment Filed by HL&P and TU (April 23, 1979). The Staff is not yet in receipt of any TV pleadings filed with the Appeal Board.
1731 243
It is the Staff's position that HL&P's petition for directed cartification should be denied on the grounds that certification and interlocutory review of the Licensing Board's Order denying summary disposition is not warranted under the NRC Rules of Practice,10 CFR 9 2.718(i), and prevailing Commission jurisprudence.
In summary, the basis for the Staff's position is that there is not the irreparable harm, injury to the public interest, or the presence of unusual delay or expense which would warrant certification being granted.N Nevertheless, should certification be granted, the Licensing Board, in its October 5th Order, properly considered both the applicable law and the relevant policy factors and practical aspects in denying the application of collateral estoppel. Accordingly, the Licensing Board's refusal to involve collateral estoppel should be upheld.
II.
BACKGROUND On January 30, 1979, the United States District Court for the Northern District of Texas, sitting in Dallas, Texas, issued its decision in West Texas Utilities Company and Central Power & Light Company v. Texas Electric Service Company and Houston Lighting & Power Company, 470 F. Supp. 798 (N.D. Tex.1979), appeal pending.O In its opinion, the District Court made it clear that the case being decided was grounded in Section 1 of the 5f The Licensing Board found, among other practical considerations which would argue against applying collateral estoppel, that "since there will be an evidentiary hearing in any event, there would be no 'consid-erations of economy of judicial time. '" See Order, at p.13.
y Docket No. 79-2677.
1731 244
s ShermanAct.U Plaintiffs' allegations involved issues of a group boycott and refusal to deal by a group of Texas utilities (the Texas Interconnected System-Electric Reliability Council of Texas (" TIS-ERCOT")), none of whose members engage in interstate commerce. / The District Court found that the defendants were not in violation of Section I and that no antitrust liability attached to either HLAP or Texas Electric Service Company ("TESC0"), a subsidiary of TU.
On Novenher 15, 1979, C&SW filed its brief on appeal to the United States Circuit Court of Appeals for the Fifth Circuit.E III. STAFF RESPONSE TO HL&P POSITION A.
Certification of HLAP Ouestion Is Not Warranted Both the NRC Rules of Practice.nd NRC precedent are clear that, in the absence of truly extraordinary circumstances, certification of a denial of a motion for summary disposition is not warranted. The context in which certification is sought in this matter--a denial of summary disposition--
should also be noted in determining whether to direct certification of the question presented in the HL&P petition.
Under these circumstances, the Licensing Board was correct in refusing to certify this question to the Appeal Board under 10 CFR 56 2.718(i), 2.730(f).
7/
15 U.S.C. 6 1.
See Opinion, 470 F. Supo. at 814.
8/
See 0 pinion, 470 F. Supp. at 804, 808-09.
1/
A copy of the C&SW brief is available.
10/ See Order, at p. 20.
179 20
- 1.
NRC Standards For Directed Certification of Questions by Appeal Board While no rules of NRC practice specifically address directed certification by the Appeal Board,10 CFR 9 2.718(1) has been interpreted by the Appeal Board to pennit such action.
Public Service Co. of New Hampshire (Seabrcok Station, Units 1 & 2), ALAB-271,1 NRC 478, 482-83 (1975).El This is an exception to the general NRC rule against interlocutory appeals, except denials of intervention.
10 CFR SS 2.714a, 2.718(1), 2.730(f). The Appeal Board has deemed denials of summary disposition motions to be particularly inappropriate for interlocutory review by certification.
Louisiana Power &
Light Co.
(Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974).
NRC decisions have delineated certain standards for directed certification.
Generally, certification will be granted where:
(1) the ruling below threat-ens the party adversely affected by it with "immediate and serious irrepar-able impact which, as a practical matter, could not be alleviated by later appeal,"S/ (2) the ruling below affects the basic structure of the proceeding
-11/ See also, Puget Sound Power & Light Company et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572 (Nov. 20,1979).
M/ Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977).
1731 246 "in a pervasive or unusual manner;"E or (3) exceptional circumstances exist on questions of what or how evidence will be admitted.N 2.
The Appeal Board Should Not Direct Certification The application of these standards to this matter makes it clear that there is no basis for the Appeal Board to direct certification of the question presented by HL&P in its petition, particularly since the question arises in the context of a denial of HL&P's motion for summary disposition. HL&P will suffer no immediate and serious irreparable impact if their petition is denied. Both the Staff and the Department of Justice have indicated that they may present evidence that C&SW presented in the District Court.b In addition, the issues in controversy adopted by-the Licensing Board in both the South Texas and Comanche Peak proceedings clearly contemplate evidentiary presentations on Section 1 Sherman Act issues and policies.E As a result, these issues in controversy and the expected evidentiary submissions of the parties indicate that the basic structure of the proceeding will be unaffected, for all practical purposes, by denying the HL&P petition.E Finally, the 13/
Id.
14/ Power Authority of the State of New York (Greene County Nuclear
~-
Power Plant), ALAB-439, 6 NRC 640 (1977); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-393, 5 NRC 767, 768 (1977); Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98 (1976); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-353, 4 NRC 381 (1976).
_1_5/ See Transcript of Proceedings, at pp. 288, 299 (June 1,1979)(in this 5
combined docket); Order, at p.13.
1_6/ See Exhibits 1(a) and 1(b) annexed hereto.
The Comanche Peak issues are virtually identical to those in South Texas.
-17/ See notes 5 and 15, supra.
1731 247
. Staff regards the collateral estoppel question raised here as essentially evidentiary, and the Appeal Board has been disinclined in the past to grant directed certification in this area.I8f HL&P has not identified any basis under the Commission's Rules of Practice as to why the Appeal Board shcald grant certification, other than its own opinion that this question presents "a significant and precedential issue of law."
This is not the relevant standard for directing certification.b 18/ See note 14, supra.
-19/ HL&P Petition, at p. 5.
The standard quoted by HL&P ("a significant and precedential issue of law") paraphrases the Commission's language in United States Energy Research and Development Admin., et al.
(Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 76 (1976), where it stated :
No party has a vested right to the continuing effectiveness of an erroneous Licensing Board ruling which happens to favor it.
In the interest of orderly resolution of disputes, there is every reason why the Commission should be empowered to step into a pro-ceeding and provide guidance on important issues of law and policy.
To be sure, the delays and confusions which can be produced by interlocutory review argue, as the Appeal Board correctly recog-nized, for sparing use of this authority. But here the decision of the Licensing Board itself threatened substantial delay for the proceeding, delay which could not be captured by later correction of error. More importantly, the Licensing Board ruling raises important issues of our relationship to other Federal agencies and their work product. These issues, arising for the first time in this proceedino, may recur in future licensing of ERDA facilities.
Thus, we disagree with the Appeal Board regarding the certifiability of the decisions sought be be reviewed.
(emphasisadded).
It is evident that HL&P's paraphrase was based on language not intended to define fully the relevant standards for certification.
Further, in Clinch River, the Commission saw the Licensing Board ruling as raising important issues of first impression concerning NRC's relationship with ERDA.
On the contrary, whether collateral estoppel effect may be accorded in NRC antitrust proceedings to issues detemined in a prior judicial pro-ceeding is not a case of first impression.
Indeed, the precise issue was addressed by the Appeal Board in Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 & 3) ALAB-378, 5 NRC 557 (1977), and answered in the affimative.
1731 248 Whether the Licensing Board was correct in its ruling on collateral estoppel is a matter that can be dealt with in exceptions to the Licensing Board's ultimate decision, particularly since the District Court's decision could be overturned or modified by the Fifth Circuit on Appeal.E Accordingly, the Staff does not find exceptional circumstanc:' or irreparable hann which would warrant certification of HL&P's question.
_2_0/ Such appellate review on collateral estoppel matters occurred in Toledo Edison Company et al.
(Davis-Besse Nuclear Power Station, Units 1, 2 & 3) ALAB-560, at pp. 208-11, 226-31 (Sept. 6,1979).
The Staff suggests that, since the District Court's decision in West Texas Utilities is on appeal, a reversal of some or all of the District Court's findings will precipitate undue confusion and potential delay in the NRC licensing of the South Texas and Comanche Peak units.
Should the District Court's findings be reversed by the Fifth Circuit after an initial antitrust decision of the Licensing Board here which applied collateral estoppel against C&SW, issues would arise as to the necessity either to bind HL&P, in turn, by the reversal or, at least, to reopen the Licensing Board proceedings.
The Appeal Board, in the Toledo Edison Company disqualification matter, showed its concern for the problem of applying collateral estoppel when a District Court's decision was on appeal by retaining jurisdiction over the natter.
In that case, the Appeal Board stated:
Because, however, we have been told that the district court's decision is now pending before the Court of Appeals for the Sixth Circuit on the City's appeal, we are retaining juris-dictL over the matter.
Should the Sixth Circuit reverse, vacate or significantly modify the District Court's ruling, within 30 days, thereafter the City may file a motion with us requesting such relief as it may deem appropriate in light of that development.
5 NRC at 560-61 (citations omitted).
See also, 5 NRC at 684.
1731 249 B.
The Licensing Board Properly Refused to Apply Collateral Estoppel 1.
Legal Standards for Application of Collateral Estoppel The Commission has held that collateral estoppel is applicable to NRC admin-istrative proceedings, in accordance with prevailing law. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974), remanding on other grounds ALAB-182, 7 AEC 210 (1974).2_1./ The Appeal Board, in Alabama Power Co., has made it clear that collateral estoppel, a judicially-created doctrine, should be detennined on a case-by-case basis,E far different from the rigid approach argued by HL&P which would remove all policy and practical considerations from any deternination.2 !.
In this regard, the Appeal Board has itself mandated that due consideration must be given to the effects of supervening material changes in factual or legal circumstances as well as competing public policy factors in detennining if they outweigh factors supporting application of collateral estoppel. The Appeal Board stated:
-21/ See also, United States v. Utah Construction and Mining Co., 384 U.S.
394 (1966); Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 2, 26-27 (1978); Houston Lighting & Power Company, et al. (South Texas Project, Unit Nos. I and 2), CLI-77-13, 5 NRC 1303 (1977); Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), LBP-77-20, 5 NRC 680 (1977).
_2_2/ ALAB-182, 7 AEC at 213-16.
2_3] See HL&P Petition, at pp. 7,13,15.
3 1731 250 f
' Needless to say, the exceptions to the application of res judicata and collateral estoppel which are found in the judicial setting are equally present where administrative adjudication is involved -
namely, changed factual or legal circumstances (Commissioner v. Sonnen, supra), and overriding competing public policy considerations (Tipler
- v. E. I. DuPont de Nemours & Co., 443 F.2d 125,126 (6th Cir.19'71)).
On the latter score, Professor Davis has suggested a particular need for cloaking an administrative agency with the discretion to decline to invoke these doctrines in the course of " feeling its way into an undeveloped frontier of law and policy".
2 Davis Adninistrative Law Treatise, p. 566.
Our conviction that res judicata and collateral estoppel should not be entirely ruled out of our licensing proceedings, but rather applied with a sensitive regard for any supported assertion of changed circum-stances or the possible existence of some special public interest factor in the particular case, is not affected by the petitioner's emphasis upon the fact that any person with requisite 2f9terest may seek to intervene in an operating license proceeding.-/
SubsequentNRCdecisionsEl demonstrate tnat the NRC boards follow this approach and do consider the NRC's statutory role, other policy and public interest factors, and changes in legal or factual circumstances in detem1ining the applicability of collattral estoppel. Accordingly, HL&P's argument for automatic application of collaterial estoppel without due regard for these other factors is not consonant with NRC precedent.
_24/ ALAB-182, 7 AEC at 215-16 (emphasis added and footnotes omitted).
jl5/ Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), supra note 20; Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2); supra note 21.
See also Consolidated Edison Company of New York, Inc. (Indian Pt. Station, Unit No. 2), ALAB-399, 5 NRC 1156,1166-68 (1977).
1731 251
_ 11
.5 The most recent Supreme Court fonnulation of the standard for application of collateral estoppel, and its difference from the concept of res judicata, appeared in Parklane Hosiery Co., Inc. v. Shore, where the Court stated:
Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second actinn is upon a different cause of action and the judgment in the prjor suit pre-cludes relitigation of issues actually litigated and necessary to the outcome of the first action.
1B, d. Moore, Federal Practice, Para. 0.405[1], at 622-624 (2d ed.1974); e.g., Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326; Commissioner v. Sunnen, Cromwell v. County of Sac, 94 U.S. 351, 352-353.g U.S. 591, 597; Other courts have detailed the four general elements which must all be present before collateral estoppel will be invoked:
(1) the issue sought-to be precluded must be identical to that involved in the prior action; (2) the identical 1ssue must have been actually litigated; (3) that issue must have been determined by a valid, final judgment; and (4) the determination of that issue must have been essential to the prior judgment.b Case law holds that where there are different legal standards to be applied, collateral estoppel is not warranted, at least in part because the requisite identity of issues for collateral estoppel purposes is not present. Cities B 439 U.S. 322, 326 n.5 (1979).
-27/ Johnson v. United States, 576 F.2d 606, 615 (5th Cir.1978); Winters v.
Lavine, 574 F.2d 46, 57-58 (2d Cir.1978); Haize v. Hanover Insurance Co.,
536 F.2d 576, 578-79 (3rd Cir.1976); 1B Moore's Federal Practice, Para.
0.443[1], at pp. 3901-02 (2 ed.1974).
1731 252 Service Gas Company v. Federal Power Conmission, 535 F.2d 1278 (D.C. Cir.
1976); Peffer v. Bennett, 523 F.2d 1323 (10th Cir.1975); Blackwelder v.
Millmy, 522 F.2d 766 (4th Cir.1975); Finneman v. McComick, 499 F.2d 212 (10th Cir.1974); IB Moore's Federal Practice, 1 0.443[2], at pp. 3903-3908 (2d ed.1974).
The Staff deems it fundamental to the question presented here that one of the four overall elements necessary for application of collateral estoppel - that the issues must be identical - has been found not to exist where the same facts were litigated under two different legal s tanda rds.2_8/
In a similar vein, cases on collateral estoppel generally hold that where there are intervening circunstances resulting in a change in the law (i.e.,
a different legal standard) or in the facts, collateral estoppel may not be applied.
See generally,1B Moore's Federal Practice, 55 0.443[2], 0.448, at 3903-08, 4231-43 (2d ed.1974); Alabama Power Company, supra, at p. 203-04 While there is no time lapse present here as in some of the " change of law" cases, those cases and the case at bar do involve two different legal standards and the applicability of collateral estoppel in such a situation.
In addition, another analogous situation involves the attempt to use colla-teral estoppel in a civil action following an acquittal in a prior criminal action. The cases hold that collateral estoppel is not applicable. One R/ See, e.g., Gulf 011 Corp. v. F.P.C., 563 F.2d 588 (3rd Cir.1977);
In Re Yarn Processing, 498 F.2d 271 (5th Cir.1974); Texaco, Inc. v.
Hickel, 437 F.2d 637 (D.C. Cir.1970); IB Moore's Federal Practice, 10.443(1) and (2), at 3901-03, 3904-07 (2d ed.1974).
1731 253 main rationale evident in those cases is the difference in legal standards:
the "beyond a reasonable doubt" criminal standard represents a greater burden of proof than the " preponderance of evidence" civil standard. M.,
Neaderland v. Comissioner of Internal Revenue, 424 F.2d 639, 642 (2d Cir.
1970), cert. denied 400 U.S. 56 (1970); Securities and Exchange Commission
- v. Everest Management Corporation, 466 F.Supp.167 (S.D.N.Y.1979). This appears markedly similar to the situation of a " violation" standard for federal courts to find antitrust liability versus the NRC's " situation inconsistent" standard.b 2.
Application of Collateral Estoppel Is Not Appropriate A review of the October 5th Order reveals that, in detemining the collateral estoppel issue, the Licensing Board considered relevant legal precedents and properly evaluated them in light of applicable practical and policy considera-tions. The starting point for a cogent analysis, in light of the legal standards and policy considerations, is the nature of the NRC's antitrust responsibilities.
First, that starting point highlights the pertinent policy matters and practical considerations implicit in any NRC evaluation of collater?1 estoppel in an antitrust proceeding.
Second, it focuses attention on one key prerequisite to application of collateral estoppel, 29
-/ See also, Garner v. Garrusso, 571 F.2d 1330 (5th Cir.1978) (r 'na of administrative hearing on temination of employment allegedly i
radial discrimination narrower than Federal employment discrimin<
.sn action).
1731 254 i.e., whether issues are identical between the two cases.b The require-nent that the issues be identical for collateral estoppel to be invoked is not subject to dispute b The District Court had before it one cause of action centered around issues of alleged refusals to deal and a group boycott flowing from the intrastate-only policies of the TIS-ERCOT utilities. The allegations relating to the intrastate-only policy arose under Section 1 of the Sheman Act, and the District Court, to find liability, had to detamine that there was a viola-tion of Section 1.
The District Court did not have before it any issues concerning monopolization under Section 2 of the Sheman Act or unfair methods of competition under Section 5 of the FTC Act.
By contrast, the Commission in fulfilling its antitrust responsibilities under Section 105c of the Atonic Energy Act of 1954, as amended, must detemine whether there is a " situation inconsistent" with the antitrust laws specified in Section 105a (including Sections 1 and 2 of the Sheman Act, and Section 5 of the Federal Trade Commission Act) or the policies 30/ Order, at pp. 8-11.
3_1/ See notes 27, 28, supra.
32/ Compare Exhibit 2, attached hereto, with the District Court's statement of the lone issue before it:
"This case, as it has been presented over the past two and one-half years, really boils down to a single, prelimi-nary question of law, that is, whether or not it is a violation of 61 of the Sheman Act for an electric utility to... decide to conff ae its facilities and operations solely within a single state." 470 F. Supp.
at 814.
1731 255
underlying those antitrust laws.b The District Court, however, is without jurisdiction to make a determination as to a " situation inconsistent" with the antitrust laws specified in Section 105a (i.e., the Shennan, Clayton, ar.d FTC Acts) or the policies underlying those laws.
Indeed, aside from the NRC responsibility to consider the FTC Act, it has been held that only the Federal Trade Commission is empowered to find a practice to be an unfair method of competition under Section 5 of the FTC Act.b Similarly, only the NRC can make findings as to a " situation inconsistent" with the anti-trust laws under section 105c of the Atomic Energy Act.
The Commission has described the unique role of the NRC in antitrust matters:
But other policies are also reflected in Section 105c, viz, that a government-developed monopoly-like nuclear power electricity generation not be utilized in ways which contravene the policies contained in the various antitrust acts.
Section 105c is a mech-anism to allow the smaller utilities, municipals, and cooperatives
..: cess to the licensing process to pursue their interests in the event that larger utility applicants might use a governmegflicense to create or maintain an anticompetitive market position.-
In its South Texas decision, the Commission commented on the special anti-trust role of the NRC, after stating that the NRC's antitrust expertise is not unique and that the agency was not given police powers independent of its licensing process:
3_3/ See 42 U.S.C. 69 2135a, 2135c(5); Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-560, at p. 8 (September 6,1979).
34/ FTC v. Sperry & Hutchinson Company, 405 U.S. 233, 249 (1972).
35/ Florida Power & Light Company (St. Lucie Plant, Unit No. 2), CLI-78-12, 5
7 NRC 939, 946 (1978); see also, Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 22-23 (1977).
1731 256
. Through the licensing process, we can effectuate the special concern of Congress that anticompetitive influences be identi-fled and corrected in their incipiency.
No nuclear power can be generated without an NRC license and the licensing process thereby allows us to act in a unique way to fashion remedies, if we find that an applicant's plans may be incoggjstent with the antitrust laws or their underlying policies.-
The unique " situation inconsistent" standard and other above-mentioned fea-tures cf NRC antitrust responsibilities under Section 105 make it evident that collateral estoppel may be invoked in an NRC antitrust proceeding only after close exanination of the two legal standards (especially as to identity of issues) and the practical considerations and policies involved.
In the spirit of the cautionary words of the Appeal Board in Alabama Power Company, quoted supra,b rofessor Davis ha:, observed that:
P when the legislative intent is to vest primary power to make particular deteminations concerning a subject matter in a particular agency, a court's decision concerning that matter may be without binding effect on that agency."3gybject And later, Professor Davis wrote that "what appears to be an identity of issues may not be when the two cases arise under different statutes; even if the two statutes appear identical, the policies under them may differ."b 36/ Houston Lighting & Power Company, et al. (South Texas Project, Units 6
Nos. I and 2), CLI-77-13, 5 NRC 1303,1316 (1977).
37/ See p.10, herein.
38/ 2 Davis, Administrative Law Treatise, 518.12 at p. 627-28 (1958),
quoted with approval by Appeal Board in Toledo Edison Company et al.
(Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-378, 5 NRC 557, 561 (1977) (where collateral estoppel was permitted to foreclose relitigation of the issue of attorney disqualification).
g K. Davis, Administrative Law Text p. 363 (3rd ed.1972); See also, Tioler
- v. E.I. duPont om Nemours & Co., Inc., 443 F.2d 125 (6th Cir.1971).
1731 257
The Licensing Board examined these and other relevant factors, and found both lack of identity of issues as well as other practical and policy reasons for denying application of collateral estoppel. HL&P ignores this detailed, over-all analysis by the Licensing Board, and instead attempts to isolate certain aspects of the Licensing Board's analysis as grounds for reversal, as though those comprised the entire breadth of the Licensing Board's analysis. The Staff reads HL&P's petition to raise only the issues of:
(1) whether the Licensing Board detemined the identity of issues question properly;W (2) whether the " facts" allegedly decided by the District Court are, indeed, the same ones raised here;$ and (3) whether collateral estoppel is to be applied automatically if the four general elements are present, without exanination of policy and practical considerations.E The Staff's views as to the lack of identity of issues have been presented at length above. As to the second HL&P issue noted above, the seven " facts" which HL&P believes deserve collateral estoppel effect are, for the most part, critical mixed fact-law deteminations.
For example, HL&P seeks colla +aral estoppel on the alleged " facts" of no concerted action and no relevant markets, as found by the District Court.$ The District Court's own concept of 9/ See HL&P Petition, at p. 9-13.
H/
_Id. a t 7-9.
42/ Id. a t 14-15,16-17.
H/ The District Court actually found facts showing concerted action, but read another element into the Section 1 case law - that a party had to be forced to participate in the concerted action - to reach its conclusion that there was not concerted action for Section 1 purposes. Thus, " con-certed action" seems to be a legal tem of art, not a simple fact as HL&P asserts.
1731 258
concerted action under Section 1 of the Sherman Act was a mix of factual and legal issues, and is simply not a " fact" appropriate for collateral estoppel here.
Similarly, the concept of relevant markets, not particularly funda-nental or "necessary" to a Section 1 violation, is an extremely complex matter of detailed factual and legal analysis. This is evident in the two Appeal Board antitrust decisions in Davis-BesseS and Midland,El where the nature of the electrical industry across several states, a multitude of actions by various parties, and numerous legal doctrines were all used to nake the respective ultimate legal determinations as to appropriate product and geographic markets and submarkets. A finding of "no relevant market" for competition seems hard to deem a mere factual detemination.
Ins tead,
it is a compendium of factual determinations which. when put together, comprise a legal element necessary in Section 2 monopolization analyses.
Accordingly, since both the scope of the issues in controversy and the standards to be applied differ as between the NRC and the District Court in West Texas Utilities, collateral estoppel on these " facts" seems inappropriate.
Collateral estoppel solely against CSW would also create, in Staff's view, more confusion and delay than if collateral estoppel is denied in both the South Texas and Cona1che Peak proceedings.
Numerous partie3 in both pro-ceedings allege anticompetitive activities by TV and HL&P.
Since both the 44/ ALAB-560, at pp. 68-71 (Sept. 9,1979).
45f ALAB-452, 6 NRC 892, 945-997 (1977).
1731 259
. Staff and the Department of Justice may well put on evidence which covers the same areas, collateral estoppel against C&SW evidence would not result in an obvious savings in hearing time.
In addition, if C&SW is collaterally estopped from presenting evidence on the seven " facts," for each piece of evidence C&SW seeks to introduce, the Licensing Board may well spend a long period of time detemining precisely:
(1) what evidence was presented in the District Court by C&SW, (2) whether that evidence was "necessary" to the final judgment in that case; and (3) whether the evidence now sought to be introduced by C&SW is the same as that in the District Court action.
Such deteminations would have to be made as to every single piece of evidence on competition, markets, economic injury, and the other HL&P " facts."
In addition, where factual evidence may be used to support allegations pertaining both to Section 1 and to other issues in controversy (i.e.,
Section 2 or Section 5 issues), it would be even more burdensone to keep the collaterelly estopped " facts" separate from the material not precluded. The simpler and less burdensome course would be to let any party introduce any evidence, and to pemit the Licensing Board to exercise its discretion as to the point at which such evidence becomes cumulative. As to the third issue raised by HL&P and noted above, the Staff has also indicated above that application of collateral estoppel in NRC proceedings does require examina-tion of policy and practical considerations.
See Alabama Power Company, supra.S HL&P is simply wrong when it asserts that, if the Licensing Board's consideration of the policies behind Section 105 and the practical 4_6/ CLI-74-12, 7 AEC 203 (1974), remanding on other grounds ALAB-182, 7 AEC 210 (1974).
1731 260
. circumstances present in this proceeding is correct, then under no circum-stances will collateral estoppel ever apply to NRC proceedings. Two Appeal Board decisions in Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)$ enonstrate that collateral estoppel is applied in NRC d
antitrust proceedings, but not in the narrow, automatic sense urged by HL&P.
Rather, collateral estoppel has been applied only after consideration of relevant practical and policy matters. As is clear from the Appeal Board's opinion, the Toledo Edison Company disqualificatio, matter involved identical issues coming before both a federal di trict court and a Special Board appointed here -- the issue in both forums being disqualification of a law fim from representing a litigant.48/ The Appeal Board affimed the applica-tion of collateral estoppel, partly on the grounds of discerning:
...no legislative purpose that this Commission resolve such an issue independently of a court's resolution of the same issue in an antitrust proceeding before it involving the same parties.
Nor do we subscribe to the belief of the dissenting member of the Special Board that the application of collateral estoppel in this case would constitute an unwarranted intrusion into the ability of the Commission to control its internal and, as such, would be contrary to public policy.4gpoceedings 47 This docket had been combined with Cleveland Electric Illuminating Co.,
et al.
(Perry Nuclear Power Plant Units 1 and 2). ALAB-378, 5 NRC 557 (1977), affiming LBP-76-40, 4 NRC 561, concerned disqualification of the Cleveland Electric Illuminating Company ("CEI"))in the NRC antitrust pro-law firm of Squire, Sanders and Dempsey ("SS&D" from representing the ceeding after a federal district court had refused to disqualify that fim in a civil antitrust proceeding. ALAB-560 (Slip Opinion dated Sept. 6, 1979) is the Appeal Board's antitrust decision reviewing the Licensing Board's initial decision which found a " situation inconsistent" with the antitrust laws and which ordered antitrust license conditions attached to the Davis-Besse and Perry licenses.
-48/ The Licensing Board stated: "This [whether SS&D could continue to represent CEI] is the identical issue before this Board in this proceeding." 4 NRC at 567. See also, 5 NRC at 562.
49/ 5 NRC at 561-62.
1731 26i
. ~
Manifest is the Appeal Board's consideration of the NRC's legislative mandate and the policies which lie behind the NRC's antitrust responsibility.
In addition, the Appeal Board again applied collateral estoppel in its anti-trust decision ( ALAB-560) in Davis-Besse - Perry.b In Consumers Power Compa ny,b the Licensing Board has decided the issue of the existence of a territorial agreement between Toledo Edison and Consumers Power Company against the Justice Department,12/ and the Appeal Board had affinned with respect to all of the findings on the alleged territorial agreements.E The Appeal Board, in Toledo Edison, applied collateral estoppel against the Justice Department to reverse the Licensing board's finding of the existence of a territorial agreement involving Consumers Power Company and Toledo Edison.b In the same decision, the Appeal Board also refused, in a second area, to apply collateral estoppel where it cited significantly different legal standards under two statutes, the Atomic Energy Act and Section 202(b) of the Federal Power Act,16 U.S.C. 9 824a(b)$
50 ALAB-560 (Slip opinion, Sept. 6,1979).
51] Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-452, 6 NRC 892 (1977).
52/ LBP-75-39, 2 NRC 29,106 (1975).
53/ ALAB-452 5 NRC 1093-94.
54/ ALAB-560, at pp. 226-231 (Slip. opinion, Sept. 6,1979).
55/
_Id. at 208-211.
1731 262
, HL&P also gives short shrift to the Licensing Board's reliance on the Appeal Board's antitrust decision in Toledo Edison Company, et al.
(ALAB-560)E by saying "nothing in Appeal Board'.s decision... remotely suggests that collateral estoppel should not be applied where, as here, it flows from factual issues resolved in a District Court antitrust suit."E The Appeal Board in ALAB-560 specifically addressed applicable case law dealing with the identity of issues analysis in light of different legal standards govern-ing the two pertinent deteminations involved.b The Staff contends that HL&P's statements are, therefore, not accurate.
HL&P also cites James Talcott, Inc. v. Allahabad Bank Ltd, 444 F.2d 451 (5th Cir.), cert denied 404 U.S. 940 (1971), to support its argument that colla-teral estoppel is candatory, without regard to other factors, where there is a single fact finding in a first suit "regardless of whether the prior deternination was based on the same cause of action in the second suit."b HL&P fails, however, to note that the Talcott decision also clearly recognizes that the leoal significance of the "same historical factual circumstance" differs where two demonstrably different legal standard are simultaneously M/ See note 48, supra.
57/ HL&P Petition, at 11 (emphasis added).
7 58/ ALAB-560, at pp. 209-10.
59] HL&P Petition, at q.10.
1731 263 e
applicable to it.
In such a case, the Talcotti court noted that there would be no identity of issues. See 444 F.2d at 459 n. 8 N 6_0/ The Talcott decision, rendered in 1971, indicated this was a "very narrow exception" to the identity of issue rule. 444 F.2d at 459 n.8.
The later cases cited herein may indicate that the exception is not as narrow as the court viewed it then.
HL&P also cites Azalea Drive-In Theatre, Inc. v. Hanf t, 540 F.2d 713 (4th Cir. 1976). There, collateral estoppel was invoked in a federal antitrust action based upon a state court's prior determination that a promissory note was signed without duress, i.e. that no verbal threct of a group boycott had been made. The Court (split 2-1) relied speci-fically on the identical testimony from the two persons involved; however, the majority opinion fails to address salient points made in a strong dissent (Butzner, J.) as to: (1) the inability to detemine why the state court trial judge actually found the absence of duress, a conclusion which involved three distinct issues under state law (the threat, the unlawfulness of the threat, and that it overcame the person's free will), and (2) the difference in burden of proof between the state and federal actions.
Reliance on Azalea Drive-In must be tempered not only by the factors mentioned above, but also by examination of Blackwelder v. Millman, 522 F.2d 766, 772-73 (4th Cir.1975); Crowe v. Leeke, 550 F.2d 184,187-88 (4th Cir.1977); and New York State Teamsters Conf. Pension and Retire-ment Fund v. Pension Benefit Guar. Corp., 591 F.2d 953, 956-57 (D.C. Cir.
1979). Blackwelder denies collateral estoppel, in large part, because of "a qualitatively and quantitatively higher standard of proof than is necessary in the instant action," 522 F.2d at 773, in a unanimous decision involving two of the same judges (Craven and Butzner) who disagreed in Azalea Drive-In. Crowe, an action under 42 USC % 1983 involving priion mail procedures allowing correspondence from attorneys to be opened outside an inmate's presence, declines to apply collateral estoppel after a close analysis of whether the " precise issue" litigated was raised and adjudicated in an earlier challenge to the constitution-ality of the same prison regulations. The earlier action had mentioned attorneys' correspondence being opened, but had not specifically addressed whether the inmate had to be present.
Finally, the United States Court of Appeals for the District of Columbia Circuit cited Azalea in its New York State Teamsters decision, 591 F.2d at 957, as a precedent refusing to follow Lyons v. Westinghouse (which held that detemina-tions by a state court on conspiracy to monopolize trade were not entitled to collateral estoppel effect in federal courts). However, the D.C. Circuit Court specifically noted that reasons for adherence to the Lyons v. Westinghouse ruling was strongest where "(2) the federal claim to which the state court judgment is set up as a bar turns pre-dominantly upon a legal rather than a factual detemination and involves the interpretation of federal rather than state law." 591 F.2d at 957, 1731 264 HL&P also cites Pacific Seafarers, Inc. v. Pacific Far East Line, Inc.,S/
as undermining the Licensing Board's analysis, particularly on the point that collateral estoppel is applicable even where there is a " single fact finding" from which different legal conclusions flow.
However, other cases cited herein hold that where facts are found under different legal standards, collateral estoppel need not be accorded against a litigant in a second fo rum. The Pacific Seafarers facts were not in dispute 2/ and collateral estoppel was denied. Those facts arose in a situation where a litigant was attempting to bootstrap one fact determination on " foreign commerce" by the Federal fiaritime Comnission under the Shipping Act of 1916 into a legal determination that the antitrust laws were not applicable to the litigant.
This case cannot be extended to justify, as HL&P seeks to do, the position that the Licensing Board should not, as a natter of law, have considered the differences between a section 105 proceeding on the multiple issues in controversy adopted in the South Texas and Comanche Peak proceedings and the District Court's examination as to whether there was a violation of Section 1 of the Sherman Act.
IV. CONCLUSION For the reasons stated -bove, the Appeal Board should deny HL&P's petition for certification on the grounds that certification is improper under these particular circumstances and, in the event that certification is granted, 61/ 404 F.2d 804, 809-10 (D.C. Cir.1968), cert. denied 393 U.S.1093 (1969.
62/ Id. at 809.
1731 265
- that the Licensing Board's Order be affirmed insofar as it denies collateral estoppel against C&S'4.
Respectfully submitted, Of Counsel:
Joseph Rutberg Fredric D. Chanania Chief Counsel and Director, Counsel for NP.C Staff Antitrust Division Office of Executive Legal Director Roy P. Lessy, Jr.
Yi.VL "O
Q M _
Counsel for NRC Staff Ann Hodgdon Counsel for NRC Sta Michael Blume Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of December 1979 1731 266
j EXHIBIT 1 (a) 9 L
UNITED STATES OF AMEPlCA j
NUCLEAR REGUI ATORY CO>' MISSION e
,_C.<-3 In the Matter of
)
E' ' - - 7 1 :) 45
)
TEXAS UTILITIES GENERATING COMPANY
)
Docket Nos. 50-445A l,
)
50-446A i
(Comanche Peak Stearf Electric Station, )
I Units 1 and 2)
)
4
(
PREHEARING CONFERENCE ORDER P2GARDING l
ISSUES, DISCOVERY AND CONSOLIDATION j
(Dece=ser 5, 197c)
I Following discussion with counsel, the Board adopts the g
i following issues, with the understanding that they are neces-J sarily general at this stage and that subissues will be 1
3 developed and anencments may be made as discovery proceeds and i
is co=pleted:
l Ultinate Issue I - Whether the Applicants' activities 1
(jointly, severally, or with others) under the 1
4 licenses sought will create or maintain a situation bi inconsistent with the antitrust laws (Sherman Act, l
$51 or 2; Clayton Act; Federal Trade Cocnission Act, W
55), or their clearly underlying policies.
Ultimate Issue II - What relief is appropriate to l
remedy a situation if found to be inconsistent with the antitrust laws or their clearly underlying policies.b 1/
DUPLICATE DOCUMENT
- With due consideration t Comanche Teak constructi Entire document previously I
effect.
entered into system under:
ANO 1771 267 s
No. of pages:
.