ML19296B737
| ML19296B737 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 02/13/1980 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-560, NUDOCS 8002210439 | |
| Download: ML19296B737 (7) | |
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9 UNITED STATES OF AMERICA 9
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4[P' NUCLEAR REGULATORY COMMISSION o
_g BEFORE THE COMMISSION D
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In the Matter of
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THE TOLEDO EDIS0N COMPANY and
) NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING
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50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station,
)
Units 1, 2 & 3)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
) NRC Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A (Perry Nuclear Power Plant, Units
)
1 & 2)
)
RESPONSE OF THE NRC STAFF TO THE FILING OF ADDITIONAL MATERIALS BY PETITIONER'S FOR COMMISSION REVIEW 0F ALAB-560 On September 6,1979, the Atomic Safety and Licensing Appeal Board issued an opinion (ALAB-560; 9 NRC
) which affirmed as mcdified the Initial Antitrust Decision of the Atomic Safety and Licensing Board -1/
which concluded, sub-sequent to an evidentiary hearing, that the construction and operation of the five nuclear units by the Applicants would create and maintain a situation inconsistent with each of the antitrust laws specified in section 105a of the Atomic Energy Act of 1954, as amended.
Three separate Petitions for Commission review of ALAB-560 were filed by the five Applicant companies on October 22, 1979.
The NRC Staff, the U.S. Department of Justice, and intervenor, the City of Cleveland, each opposed these petitions for review in responses filed on or before November 19, 1979. The Commission's rules of practice relevant to the filing of petitions for Commission review clearly provide that "No 1/
LBP-77-1, 5 NRC 133 (1977).
L L 6
8002210 1
e.
answer in support of a petition for review or further replies will be entertained by the Commission" (10 CFR 52.786(b)(3)).
Now,on January 31, 1980, two and one-half months after the filing of these petitions, one of the attorneys representing petitioners has filed a letter with the Commission relating to these petitions. Attached to the letter are two memorandum opinions, dated January 1980 and February 1978, issued by U.S. District Court Judge Krupansky in Cleveland, Ohio. Since no motion for leave to file those materials was filed by Applicants, and no permission to file was otherwise granted by the Commission, the letter and its enclosures should be rejected by the Commission as being filed.both out of time and in violation of the Commission's rules of practice.
The substance of these new materials allegedly relates to Mr. Sharfman's departure from the Appeal Panel prior to the issuance of ALAB-560. This matter was formally raised as a ground for Commission review by only one of 2) the five Applicants, Duquesne Light Company.
The NRC Staff responded to this argument at pp. 26-30 of its " Consolidated Answe," to all of the petitions, N
as did the Department of Justice.
Hence the Commission already has the matter before it fc consideration on its merits. The Staff does not believe 2] The CEI-Toledo Edison petition briefly mentioned Mr. Sharfman's departure, without substantive discussion (Petition, p.4, n.4).
The Ohio Edison-Pennsylvania Power petition discussed the matter in sootnotes, but did not expressly include it as a ground for Commission review.
y See " Memorandum of the Department of Justice In Opposition To Applicant's Petition For Review," pp. 4-9 (November 14, 1979).
s 3-that either (1) the dictum of Judge Krupansky, relating to ALAB-560, in a decision concerning collateral estoppel or (2) argumentative characterizations of ALAB-560 and the forementioned memorandum opinions contained in the January 29th transmittal letter by counsel, are helpful or appropriate to the Commission's determinations at this point in time.
In defense of its submission of these materials to the Commission without
~/
4 prior permission, Applicants cite Rule 8(g) of the General Rules of the United States Court of Appeals for the District of Columbia. That rule provides:
When pertinent and significant authorities come to the attention of a party after his brief (or memorandum on a motion) has been filed, or af ter oral argument but before decision, a party may, without obtaining special leave of court, supplement his brief by letter to the Clerk of this Court, furnishing 3 extra copies to the Clerk, and copy to adversary counsel, setting forth the citations. There shall be a reference either to a page of the brief or to a point orally argued to which the citations pertain, but the letter shall contain no argument or explanations. Addi-tional authorities must be submitted not less than 10 days prior to oral argument unless they were published within the 10-day period.[Emphasisadded.]
Applicants' reliance on that rule in support of their actions is misplaced.
That rule expressly prohibits " argument or explanation" as was contained in Applicants' January 29, 1980 transmittal letter. Moreover, Rule 8(g) is limited to the submission of ' pertinent and significant authorities."
As forementioned, it is arguable whether the dicta contained in Judge Krupansky's collateral estoppel decisions (one over two-year's old) constitute such authorities.
Finally, that rule is utilized in the context of briefs in appeals as a 4_/ " Applicants' Response To The Motion By The City Of Cleveland," p. 2 (February 11,1980).
matter of right, not petitions for discretionary review where the procedures expressly prohibit 'hnswers in support of a petition or further replies."
For these reasons, the NRC Staff believes that the letter and enclosures of January 29, 1980 should be rejected.
Furthermore, we continue to believe that Commission review of ALAB-560 is totally unwarranted.
Respectfully submitted,
/
Roy P. Lessy, #.
Counsel for NRC Staff Dated at Bethesda, Maryland this 13th-day of February 1980.
E
UNITED STATES OF AMERICA NUCLEAR REGULATORY CGMMISSION BEFORE THE COMMISSION In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING
)
50-500A COMFANY
)
50-501A (Davis-Besse Nuclear Power Station,
)
Units 1, 2 & 3)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
NRC Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A (Perry Nuclear Power Plant, Units
)
1 & 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF THE NRC STAFF TO THE FILING OF ADDITIONAL MATERIALS BY PETITIONER'S FOR COMMISSION REVIEW 0F ALAB-560 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 13th day of February 1980.
Ivan W. Smith, Esq., Chairman Donald A. Kaplan, Esq.
Atomic Safety and Licensing Board Janet R. Urban U.S. Nuclear Regulatory Commission P.O. Box 14141 Washington, D.C.
20555
- Washington, D.C.
20044 John Lansdale, Esq.
Cox, Langford & Brown Wm. Bradford Reynolds, Esq.
21 Dupont Circle, N.W.
Robert E. Zahler, Esq.
Washington, D.C.
20036 Jay H. Bernstein, Esq.
Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Board 1800 M Street, N.W.
Panel Washington, D.C.
20036 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Paul M. Smart, Esq.
Fuller, Henry, Hodge & Snyder Docketing and Service Section
_300 Madison Avenue Office of the Secretary Toledo, Ohio 43504 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Reuben Goldberg, Esq.
Alan P. Buchmann, Esq.
Michael D. Oldak, Esq.
Squire, Sanders & Dempsey Goldberg, Fieldman & Letham P.C.
1800 Union Commerce Building 1700 Pennsylvania Avenue, N.W.
Cleveland, Ohio 44115 Washington, D. C.
20006 Jerome Saltzman, Chief Michael M. Briley, Esq.
Nuclear Reactor Regulation Roger P. Klee, Esq.
Antitrust and Indemnity Group Fuller, Henry, Hodge & Snyder U.S. Nuclear Regulatory Commission P.O. Box 2088 Washington, D.C.
20555
- Toledo, Ohio 43604 David C. Hjelmfelt 1967 Sandalwood Fort Collins, Colorade 80526 Vincent C. Campanella, Esq.
Lee A. Rau, Esq.
Director of Law Joseph A. Rieser, Jr., Esq.
Robert D. Hart, Esq.
Reed, Smith, Shaw & McClay 1st Assistant Director of Law 1150 Connecticut Avenue, N.W.
City of Cleveland Washington, D.C. 20036 213 City Hall Cleveland, Ohio 44114 Edwa rd A. Ma t to, Es q.
Richard M. Firestone, Esq.
Frank R. Clokey, Esq.
Karen H. Adkins, Esq.
Special Assistant Attorney Antitrust Section General 30 E. Broad Street,15th Floor Room 219 Columbus, Ohio 43215 Towne House Apartments Harrisburg, Pa. 17105 Christopher R. Schraff, Esq.
Assistant Attorney General Donald H. Hauser, Esq.
Environmental Law Section Victor F. Greenslade, Jr., Esq.
361 E. Broad Street, 8th Floor William J. Kerner, Esq.
Columbus, Ohio 43215 Cleveland Electric Illuminating Co.
55 Public Square James R. Edgerly, Esq.
Cleveland, Ohio 44101 Secretary m..d General Counsel Pennsylvania Power Company Russell J. Spetrino, Esq.
One East Washington Street Thomas A. Kayuha, Esq.
New Castle, Pa.
16103 Ohio Edison Company 47 North Main Street Chairman Hendrie Akron, Ohio 44308 Office of the Comission U.S. Nuclear Regulatory Commission Terence H. Benbow, Esq.
Washington, D.C.
20555 A. Edward Grashof, Esq.
Steven A. Berger, Esq.
Commissioner Gilinsky Steven B. Peri, Esq.
Office of the Commission Winthrop, Stimson, Putnam
& Roberts U.S. Nuclear Regulatory Commission 40 Wall Street Washington, D.C.
20555 New York, New York 10005 Commissioner Kennedy Office of the Commission Thomas J. Munsch, Esq.
General Attorney U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Duqu a e Light Company 435 Sixth Avenue Comissioner Bradford Pittsburgh, Pa. 15219 Office of the Commission U.S. Nuclear Regulatory Commission David Olds, Esq.
Washington, D.C.
20555 Reed, Smith, Shaw & McClay Union Trust Building Commissioner Ahearne Box 2009 Office of the Commission Pittsburgh, Pa. 15230 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Samuel J. Chilk Secretary of the Comission U.S. Nuclear Regulatory Commission Washington, D.C.
205S5
Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Richard S. Salzman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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r Roy P. L9ssy, Jr.
Counsel for NRC Staff