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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212D1771999-09-20020 September 1999 Exemption from Certain Requirements of 10CFR50,App A,General Design Criterion 57 Re Isolation of Main Steam Branch Lines Penetrating Containment ML20211A1801999-08-16016 August 1999 Forwards Comments on Draft Geig Re NUREG-1437 ML20205M8401999-04-15015 April 1999 Memorandum & Order.* Orders That Petitioner Appeal of Board Ruling Be Denied.Commission Affirms LBP-98-33 in Entirety. with Certificate of Svc.Served on 990415 ML20199K8231999-01-25025 January 1999 NRC Brief in Opposition to Appeal of Nb Williams,Wb Clay, Ws Lesan & Chattooga River Watershed Coalition.* Licensing Board Decision in LBP-98-33 Should Be Affirmed.With Certificate of Svc ML20199K8101999-01-25025 January 1999 Duke Energy Corp Brief in Opposition to Appeal of Chattooga River Watershed Coalition.* Informs That Licensing Board Decision in LBP-98-33 Should Be Affirmed.With Certificate of Svc ML20199D7021999-01-14014 January 1999 Notice of Appeal.* Chattooga River Watershed Coalition Files Notice of Appeal to Commission for Review of ASLB 981230 Memorandum & Order Denying Petitioner Petition for Leave to Intervene ML20199D7241999-01-14014 January 1999 Chattooga River Watershed Coalition Brief in Support of Appeal of Order Denying Intervention Petition & Dismissing Proceeding.* Commission Should Grant Petition for Review & Remand ASLB Memorandum & Order ML20198K9911998-12-29029 December 1998 Memorandum & Order (Denying Petition to Intervene).* Denies Petitioners Requests for Intervention Because Proffered Contentions Failed to Meet Requirements for Admissability. with Certificate of Svc.Served on 981230 ML20198D2601998-12-22022 December 1998 NRC Staff Response to Petitioners New Info.* Informs That Info Provided by Petitioners Not New & Does Not Support Proposed Contentions.Recommends Proposed Contentions Be Dismissed & Proceeding Terminated.With Certificate of Svc ML20198D2191998-12-21021 December 1998 Duke Energy Corp Response to New Info Submitted by Chattooga River Watershed Coalition in Support of Processed Contentions.* Petitioner Submittal of New Info Should Be Stricken for Procedural Reasons.With Certificate of Svc ML20197J9201998-12-14014 December 1998 Order (Requests by Staff & Applicant to File Responses). Motions of 981211 Re Applicant & Staff Request for Leave to Respond to Petitioner Filing of 981209 Granted.With Certificate of Svc.Served on 981214 ML20197J9441998-12-11011 December 1998 NRC Staff Motion for Leave to Respond to Petitioner Filing.* Staff Requests Leave from Board to Respond to Info.Staff Will File Response within 3 Days After Board Order Issued,If Board Grants Request.With Certificate of Svc ML20197K1131998-12-11011 December 1998 Duke Energy Corp Motion for Leave to Respond to New Info Submitted by Chattooga River Watershed Coalition.* Requests Leave to Respond to Petitioners New Info Based on Listed Grounds.With Certificate of Svc ML20196J9051998-12-0909 December 1998 Response of Duke Energy Corp to Licensing Board Order Requesting Info Concerning high-level Radioactive Waste Transportation Rulemaking.* Util Requests That Board Certify Question Immediately.With Certificate of Svc ML20197J8691998-12-0909 December 1998 Petitioners Response to ASLB Request for Addl Info & New Info for ASLB to Consider with Petitioners First Suppl Filing.* Response Filed on Behalf of Ws Lesan,B Clay, B Williams & Chattooga River Watershed Coalition ML20196E0091998-12-0202 December 1998 NRC Staff Response to Order Requesting Information.* in Staff View,Impacts of Transportation of HLW Not Appropriate Issue for Litigation in This Proceeding ML20196E0191998-11-30030 November 1998 Affidavit.* Affidavit of Dp Cleary in Response to Licensing Board Questions Re Environ Impacts of Transportation of High Level Waste.With Certificate of Svc ML20195G5621998-11-19019 November 1998 Order (Requesting Addl Info from Staff).* Based on Directives in SRM M970612,staff Should Furnish Listed Info by 981202.Applicant & Petitioners Have Until 981209 to File Response.With Certificate of Svc.Served on 981119 ML20195D5281998-11-16016 November 1998 Response of Duke Energy Corp to Supplemental Petition to Intervene Filed by Chattooga River Watershed Coalition & Nb Williams,Wb Clay & Ws Lesan.* Request for Hearing Should Be Denied for Reasons Stated.With Certificate of Svc ML20195C1601998-11-16016 November 1998 NRC Staff Response to Petitioner First Supplemental Filing.* Petitioners Failed to Submit Admissible Contention.Iaw 10CFR2.714,petition Should Be Denied & Petitioners Request for Stay Should Be Denied.With Certificate of Svc ML20155F5041998-10-30030 October 1998 Declaration of N Williams.* Declaration Expresses Concerns Re Duke Power Co Application for License Renewal for Oconee Nuclear Station,Units 1,2 & 3.Application Inadequate to Protect from Unacceptable Risk of Radiological Accidents ML20155F4951998-10-30030 October 1998 Declaration of Ws Lesan.* Declaration Expresses Concern Re Duke Power Co Application for Renewal of License for Oconee Nuclear Station,Units 1,2 & 3.Application Inadequate to Protect from Unacceptable Risk of Radiological Accidents ML20155F4791998-10-30030 October 1998 Petitioners First Supplemental Filing.* Petitioners Request That Chattooga River Watershed Coalition Be Admitted as Party to These Proceedings & That Contentions Be Admitted for Adjudication.Unsigned Declaration for Wb Clay Encl ML20154H0771998-10-0909 October 1998 NRC Staff Answer to Petition for Leave to Intervene Filed by N Williams,W Clay,Ws Lesan & Chattooga River Watershed Coalition.Petition Should Be Denied for Listed Reasons. with Certificate of Svc ML20154A9371998-10-0101 October 1998 Order (Ruling on Request for Extension of Time).* Motion for 30-day Extension to File Amended Petition to Intervene Denied.Petitioners Have Addl 11 Days Until 981030 to File Suppl to Petition.With Certificate of Svc.Served on 981002 ML20154A0401998-09-30030 September 1998 Response of Duke Energy Corp to Request for Enlargement of Time of Chattooga River Watershed Coalition & Messrs, N Williams,W Clay & Ws Lesan.* Petitioner Request Should Be Denied for Listed Reasons.With Certificate of Svc ML20153H4191998-09-29029 September 1998 NRC Staff Response to Motion for Enlargement of Time Filed by N Williams,W Clay,W Lesan & Chattooga River Watershed Coalition.* Petitioners Failed to Establish Sufficient Cause for Delaying Submission of Amends.With Certificate of Svc ML20153F3131998-09-25025 September 1998 Notice of Appearance.* Informs That ML Zobler,Rm Weisman & Je Moore Will Enter Appearances in Proceeding Re Duke Energy Corp.With Certificate of Svc ML20153H0801998-09-22022 September 1998 Comment on Draft NUREG-1633, Assessment of Use of Potassium (Ki) as Protective Action During Severe Reactor Accidents. Emergency Plan Calls for Evacuation of Population of EPZ in Timely Fashion to Prevent Exposure to Radiation from Oconee ML20151Z7051998-09-18018 September 1998 Memorandum & Order.* Applicant & Staff Shall File Respective Answers After Petitioners File Any Amend to Intervention Petition.Answers Shall Be Filed IAW Schedule as Submitted. with Certificate of Svc.Served on 980918 ML20151Z5681998-09-18018 September 1998 Notice of Reconstitution of Board.* Provides Notification of Reconstitution by Appointing P Cotter as Board Chairman in Place of T Moore in Duke Energy Corp Proceeding.With Certificate of Svc.Served on 980918 ML20151X9911998-09-16016 September 1998 Establishment of Atomic Safety & Licensing Board.* Board Being Established in Proceeding Re Application by DPC to Renew Operating Licenses for Units 1,2 & 3,per 10CFR54.With Certificate of Svc.Served on 980917 ML20210K7351997-08-18018 August 1997 Order Prohibiting Involvement in NRC-licensed Activities (Effective Immediately).Rj Nelson Prohibited for 1 Yr from Date of Order from Engaging in or Exercising Control Over Individuals Engaged in NRC-licensed Activities TXX-9522, Comment Opposing Proposed GL on Testing of safety-related Logic Circuits.Believes That Complete Technical Review of All Surveillance Procedures Would Be Expensive & Unnecessary Expenditure of Licensee Resources1995-08-26026 August 1995 Comment Opposing Proposed GL on Testing of safety-related Logic Circuits.Believes That Complete Technical Review of All Surveillance Procedures Would Be Expensive & Unnecessary Expenditure of Licensee Resources ML20077E8231994-12-0808 December 1994 Comment Supporting Proposed Rules 10CFR2,51 & 54 Re Rev to NRC NPP License Renewal Rule ML20044G7371993-05-25025 May 1993 Comment on Proposed Rules 10CFR170 & 171, FY91 & 92 Proposed Rule Implementing Us Court of Appeals Decision & Rev of Fee Schedules;100% Fee Recovery,FY93. Opposes Rule ML20101R5931992-07-0606 July 1992 Comment on Proposed Rule 10CFR50 Re Loss of All Alternating Current Power & Draft Reg Guide 1.9,task DG-1021.Opposes Rule ML20070E6291991-02-28028 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Regulations to Upgrade Design Basis Threat for Radiological Sabotage of Nuclear Reactors ML20147F3231988-03-0303 March 1988 Order Imposing Civil Monetary Penalty in Amount of $100,000 within 30 Days of Order Date ML20215D6741987-06-12012 June 1987 Suppl 4 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.Ucs Reply to Responses from NRC & B&W Owners Group.* Certificate of Svc Encl ML20214F4411987-04-24024 April 1987 Endorsements 35 & 36 to Maelu Policy MF-101 & Endorsements 43 & 44 Nelia Policy NF-248 ML20210C4191987-04-0606 April 1987 Principal Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Petition Should Be Denied ML20205F2911987-03-23023 March 1987 Suppl 3 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Requests That Listed Names Be Added to List in Paragraph 1 of 870210 Petition ML20210C2691987-03-0606 March 1987 Initial Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Request for Immediate Suspension Should Be Summarily Denied.W/Certificate of Svc ML20211F5091987-02-20020 February 1987 Suppl 2 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Lists Names to Be Added to 870210 Petition & Corrects Address for Save Our State from Radwaste ML20210N4861987-02-10010 February 1987 Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W Co.* OLs & CPs for Facilities Should Be Suspended Until Listed NRC Actions Taken ML20203N3261986-09-19019 September 1986 Order Imposing Civil Monetary Penalty in Amount of $50,000 DD-85-19, Order Extending Time Until 860303 for Commission to Review Director'S Decision DD-85-19.Served on 8602201986-02-19019 February 1986 Order Extending Time Until 860303 for Commission to Review Director'S Decision DD-85-19.Served on 860220 ML20137L5911985-09-10010 September 1985 Response Opposing Jf Doherty 850611 Petition for Show Cause Order Requesting NRC to Institute Consolidated Proceeding Per 10CFR2.202.Certificate of Svc Encl ML20133P9591985-07-26026 July 1985 Unexecuted Amend 8 to Indemnity Agreement B-83,modifying Definition of Radioactive Matl as Listed 1999-09-20
[Table view] Category:PLEADINGS
MONTHYEARML20199D7021999-01-14014 January 1999 Notice of Appeal.* Chattooga River Watershed Coalition Files Notice of Appeal to Commission for Review of ASLB 981230 Memorandum & Order Denying Petitioner Petition for Leave to Intervene ML20198D2601998-12-22022 December 1998 NRC Staff Response to Petitioners New Info.* Informs That Info Provided by Petitioners Not New & Does Not Support Proposed Contentions.Recommends Proposed Contentions Be Dismissed & Proceeding Terminated.With Certificate of Svc ML20198D2191998-12-21021 December 1998 Duke Energy Corp Response to New Info Submitted by Chattooga River Watershed Coalition in Support of Processed Contentions.* Petitioner Submittal of New Info Should Be Stricken for Procedural Reasons.With Certificate of Svc ML20197J9441998-12-11011 December 1998 NRC Staff Motion for Leave to Respond to Petitioner Filing.* Staff Requests Leave from Board to Respond to Info.Staff Will File Response within 3 Days After Board Order Issued,If Board Grants Request.With Certificate of Svc ML20197K1131998-12-11011 December 1998 Duke Energy Corp Motion for Leave to Respond to New Info Submitted by Chattooga River Watershed Coalition.* Requests Leave to Respond to Petitioners New Info Based on Listed Grounds.With Certificate of Svc ML20196J9051998-12-0909 December 1998 Response of Duke Energy Corp to Licensing Board Order Requesting Info Concerning high-level Radioactive Waste Transportation Rulemaking.* Util Requests That Board Certify Question Immediately.With Certificate of Svc ML20197J8691998-12-0909 December 1998 Petitioners Response to ASLB Request for Addl Info & New Info for ASLB to Consider with Petitioners First Suppl Filing.* Response Filed on Behalf of Ws Lesan,B Clay, B Williams & Chattooga River Watershed Coalition ML20196E0091998-12-0202 December 1998 NRC Staff Response to Order Requesting Information.* in Staff View,Impacts of Transportation of HLW Not Appropriate Issue for Litigation in This Proceeding ML20195D5281998-11-16016 November 1998 Response of Duke Energy Corp to Supplemental Petition to Intervene Filed by Chattooga River Watershed Coalition & Nb Williams,Wb Clay & Ws Lesan.* Request for Hearing Should Be Denied for Reasons Stated.With Certificate of Svc ML20195C1601998-11-16016 November 1998 NRC Staff Response to Petitioner First Supplemental Filing.* Petitioners Failed to Submit Admissible Contention.Iaw 10CFR2.714,petition Should Be Denied & Petitioners Request for Stay Should Be Denied.With Certificate of Svc ML20155F4791998-10-30030 October 1998 Petitioners First Supplemental Filing.* Petitioners Request That Chattooga River Watershed Coalition Be Admitted as Party to These Proceedings & That Contentions Be Admitted for Adjudication.Unsigned Declaration for Wb Clay Encl ML20154A0401998-09-30030 September 1998 Response of Duke Energy Corp to Request for Enlargement of Time of Chattooga River Watershed Coalition & Messrs, N Williams,W Clay & Ws Lesan.* Petitioner Request Should Be Denied for Listed Reasons.With Certificate of Svc ML20153H4191998-09-29029 September 1998 NRC Staff Response to Motion for Enlargement of Time Filed by N Williams,W Clay,W Lesan & Chattooga River Watershed Coalition.* Petitioners Failed to Establish Sufficient Cause for Delaying Submission of Amends.With Certificate of Svc ML20215D6741987-06-12012 June 1987 Suppl 4 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.Ucs Reply to Responses from NRC & B&W Owners Group.* Certificate of Svc Encl ML20210C4191987-04-0606 April 1987 Principal Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Petition Should Be Denied ML20205F2911987-03-23023 March 1987 Suppl 3 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Requests That Listed Names Be Added to List in Paragraph 1 of 870210 Petition ML20210C2691987-03-0606 March 1987 Initial Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Request for Immediate Suspension Should Be Summarily Denied.W/Certificate of Svc ML20211F5091987-02-20020 February 1987 Suppl 2 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Lists Names to Be Added to 870210 Petition & Corrects Address for Save Our State from Radwaste ML20210N4861987-02-10010 February 1987 Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W Co.* OLs & CPs for Facilities Should Be Suspended Until Listed NRC Actions Taken ML20137L5911985-09-10010 September 1985 Response Opposing Jf Doherty 850611 Petition for Show Cause Order Requesting NRC to Institute Consolidated Proceeding Per 10CFR2.202.Certificate of Svc Encl ML20126A3531985-06-11011 June 1985 Petition/Request for Order to Show Cause Why Plants Should Not Be Shut Down Until CRD Mechanisms Inspected ML20004F4851981-06-16016 June 1981 Answer Opposing Carolina Environ Study Group 810606 Request to Stay ASLB 810419 & 0526 Decisions.Util Compliance W/Regulations Entitles ASLB to Find Facility Can Be Operated W/O Undue Risk to Public Health.Certificate of Svc Encl ML20004F0131981-06-0808 June 1981 Exceptions to ASLB 810526 Supplemental Initial Decision & 790418 Initial Decision.Aslb Erred in Rejecting Jl Riley Evidence as Expert Witness & Decision That Riley Affidavit Not Responsive.Affidavit of Suc Encl ML20004D4161981-06-0505 June 1981 Request for Stay of Initial & Supplemental Initial Decisions.Commission Should Refer Decisions to ASLAP for Review.Potential for Irreparable Harm Due to Serve Hydrogen Explosion Is Great.Affirmation of Svc Encl ML20004D4231981-06-0505 June 1981 Request for Stay of Initial & Supplemental Initial Decisions.Aslb Lacks Basis for Finding Operation Would Not Expose Public to Undue Risk Since Board Did Not Determine Consequences of Shell Rupture.Affirmation of Svc Encl ML20004C8571981-06-0101 June 1981 Response in Opposition to Carolina Environ Study Group 810515 Motion to Permit Appeal of ASLB 810506 Order Denying Util Request for 35% Power Operations.Party May Not Appeal Favorable Decision.Certificate of Svc Encl ML19343D3451981-04-17017 April 1981 Response Opposing Applicant Request for Waiver,Exception or Exemption from 10CFR2,App B.No Special Circumstances Exist to Waive Procedures ML19345G9021981-04-17017 April 1981 Response in Opposition to Carolina Environ Study Group 810402 Motion Questioning Util 810324 Request for OL for 35% Power level.TMI-type Accident Is Not Credible.Proposed Order & Certificate of Svc Encl ML19347D9171981-04-0909 April 1981 Response in Opposition to Carolina Environ Study Group 810406 Request for Extension to File Findings of Fact & Conclusions of Law.Applicant Transcripts Available to Intervenors.Certificate of Svc Encl ML19350D2471981-04-0606 April 1981 Request for 10-day Extension to File Proposed Findings of Fact & Conclusions of Law.Counsel Occupied W/Other Cases. Certificate of Svc Encl ML19343D1461981-04-0606 April 1981 Response Opposing Carolina Environ Study Group 810302 Request for Certification or Referral.Request Unnecessary Since Commission Has Specifically Addressed Issue. Certificate of Svc Encl ML19347D9761981-04-0303 April 1981 Response Opposing Applicant 810327 Submittal of Jl Riley Affidavit & Affirmation of Svc.Filing Is Contrary to ASLB Ruling.Record Is Closed & Filing Is Not Responsive ML19347D9791981-04-0303 April 1981 Response to Jl Riley 810327 Affidavit Re Polyurethane Pyrolysis in Form of Encl Wh Rasin Affidavit ML19350D2501981-04-0202 April 1981 Reply Opposing Applicant 810324 Motion for License Authorizing Up to 35% Rated Power Operation.Alleged Need to Bolster Util Summer Reserve Is Result of Scheduling Oconee 1 Maint During Summer Peak.W/Certificate of Svc ML19347D7811981-03-24024 March 1981 Request for License Authorizing Operation Up to & Including 35% Rated Power.Fuel Loading,Initial Criticality & Zero Power Physics Testing to Be Completed by 810515.Certificate of Svc Encl ML19341D4501981-03-0202 March 1981 Response in Objection to ASLB 810217 Memorandum & Order Denying Admission of Contentions 5 & 6.Supplementary EIS on Class 9 Accident Is Necessary Predicate in Proceeding.Denial Should Be Certified to Commission.W/Certificate of Svc ML19350B7511981-02-26026 February 1981 Carolina Environ Study Group Application for Subpoenas Re Reopened McGuire Units 1 & 2 OL Proceeding.List of Proposed Witnesses & Questions Encl.Related Correspondence ML20003B3151981-02-0404 February 1981 Request for Reconsideration of Schedule.Carolina Environ Study Group Should Be Allowed to Submit Prefiled Testimony Seven Days After Receipt of NRC Complete Prefiled Testimony. Certificate of Svc Encl.Related Correspondence ML19345E8431981-02-0202 February 1981 Response Opposing Carolina Environ Study Group Motion & Memorandum to Add Contentions.Question of Need to Suppl EIS Resolved.No Special Circumstances Exist to Include Charlotte,Nc in Emergency Plans ML20002E0871981-01-21021 January 1981 Memorandum Supporting Carolina Environ Study Group Motion to Add Contentions 5 & 6 Advanced in 801107 Reply to Applicant Motion for Summary Disposition.Notice of Appearance & Certificate of Svc Encl ML20002E0531981-01-19019 January 1981 Response to Mecklenburg County Board of Commissioners & City of Charlotte 801231 & 810113 Requests to Participate. Applicant Has No Objection.Certificate of Svc Encl ML19340E5881981-01-0808 January 1981 Motion to Suppl 801107 Contentions 5 & 6 W/Memorandum of Law.No Objection to Extension for Reply.Certificate of Svc Encl ML19340D2821980-12-15015 December 1980 Response to Carolina Environ Study Group Motion to Add Further Contentions.Carolina Environ Study Group Addl Contentions 5 & 6 Found Factually & Legally Flawed & Merit Denial.Certificate of Svc Encl ML19345E0491980-12-0202 December 1980 Response in Opposition to M Fennel 800926 Request to Reopen Hearing If Viewed as Late Petition to Intervene.Certificate of Svc Encl ML19339C3361980-11-12012 November 1980 Supplemental Filing Re Applicant Motion for Summary Disposition of Application for Fuel Loading & Low Power Testing.Calls Attention to Encl 801021 Fr Notice.Urges Expedited Consideration.Certificate of Svc Encl ML19340B7751980-11-0707 November 1980 Suppl to Statement of Matl Facts Re Absence of Issues to Be Heard.Hydrogen Generation Event During Worst Case May Be Terminated Prior to Onset of Core Damage.Notice of Mu Rothschild Appearance & Certificate of Svc Encl ML19340C4801980-11-0707 November 1980 Response in Opposition to Applicant 800930 Motion for Summary Disposition Re Application for License Authorizing Fuel Loading.Moves for Consolidated Hearing Re Provisionary & Full Term Ols.Related Correspondence ML19339B5581980-11-0303 November 1980 Comments on Commission 800926 Order Requesting Positions of Parties on Carolina Environ Study Group Revised Motion to Reopen Record.Affirms Prior View That CLI-80-16 Has No Direct Bearing on Motion.Certificate of Svc Encl ML19347B4111980-10-0909 October 1980 Response in Opposition to P Edmonston 801002 Request to Make Statement,If Viewed as Petition to Intervene.No Objection If Viewed as Request to Make Limited Appearance Statement If Hearing Held.Certificate of Svc Encl ML19347B3641980-10-0808 October 1980 Response in Opposition to s Wilson 800930 Ltr,If Viewed as Late Petition to Intervene.No Objection to s Wilson Public Statement,If Hearing Reopened.Certificate of Svc Encl 1999-01-14
[Table view] |
Text
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) Docket Nos. -2 50-270A
) A, 50-369A DUKE POWER COMPANY ) 50-370A (Oconee Units 1, 2 & 3 )
McGuire Units 1& 2) )
APPLICANT'S ANSWER TO MOTION OF DEPARTMENT OF JUSTICE TO RESETTLE PREHEARING ORDER NUMBER SIX The Department of Justice moved to resettle Pre-hearing Order Number Six by proposing to delete from subissue 3(i) the bracketed words " sham", as follows: l Has Applicant engaged in any other j activities including [ sham] litiga-tion and (sham] attempts to influence Government acts , which demonstrate that Applicant has engaged in monopo-lization or a combination to monopolize
- , or are evidence of an intent of Applicant to restrain competition or show the anticompetitive character of Applicant's course of conduct? ,
i Applicant submits that this motion should be denied. l The Department does not seek to correct an inadver-tent error in the Board's Order. Rather, contrary to the Board's directions regarding resettlement, it proposes to make a substantive change in one of the subissues without a showing f of " good cause". The Department's request is only an attempt to reargue the positions it raised twice previously and which were rejected as many times by this Board.
'I ,7919,180 %g
,<zg
s
-2_
Absence of Inadvertent Error After a lengthy prehearing conference on March 7, the Board agreed that resettlement of the Board's Order in regard to the Final Statement of Subissues should be limited to " inadvertent * ** [o] missions or errors in what the Board proposed." (Tr. 863). It also recognized, however, "that if there is good cause shown for a change in the pro-posed pretrial order," the Board would grant the motion (tr. 864).
The Department's motion in regard to subissue 3(1) is not based on " inadvertent" error.-1/ An extensive argument was presented to the Board on the matter of the inclusion of the clause " including sham litigation and sham attempts to influence Government acts" and the final wording of the issue was left for the Board's determination (tr. 774-802). The 1/
Tris situation, therefore, is unlike that raised by both A; plicant and the Department in regard to the omission of
, issue "S (b) " from the Final Statement of Subissues. The l
failure of the Board to include that issue appears to be i an inadvertent erro.7 since all parties agreed on the sub-stance of the issue. They merely left to the Board the i decision of whether a phrase suggested by the Justice i
Department should be included. See Applicant's Motion to i
Resettle Prehearing Order Number Six, Apr. 3, 1973, pp. 12-15.
Board's decision to include the clause, together with the word " sham" modifying both parts of it, is reflected in Prehearing Order Number Six. This phrasing was not the result of inadvertent error, but was clearly the result of informed deliberation. Thus , only if the Department has made a showing of good cause should the Board reconsider its decision on subissue 3 (i) .
Absence of Good Cause
- 1. The Prerequisites of Noerr The basic thrust of the Department's position against inclusion of the word " sham" is that " litigation or attempts to influence government action--even though not a sham--even though constitutional 1y protected--may be proper evidence of the purpose and character of other conduct alleged to be inconsistent with the antitrust laws." Department's Motion to Resettle, p. 2 (emphasis in original). This point has been argued previously at great length by the Department and was rejected by the Board. Furthermore, the Department offers no evidence of why a different result should ensue.
For example, in arguing in support of its request i
a.
_ . . - _ _i _ m for discovery into Applicant's political and legal acti-vities, the Department maintained "that although political activity may not be a violation of the antitrust laws, either standing alone or in conjunction (with] other acti-vity, it may be used as evidence of purpose and character of other activity" (tr.157) . The same line of argument was presented on behalf of the Intervenors (tr. 162, 164).
The Board rejected these contentions and sustained Appli-cant's objection to the broad discovery sought by the Joint Request with respect to Applicant's political and legal
, 2/
l activity (tr. 177).
t t
Again, on March 7, the Department argued "that i we are not necessarily looking at conduct that has to be a violation of the antitrust laws so that the standards of Noerr Pennington do not apply in this proceeding" (tr. 777).
The Department further contended that all it sought "here is to present the evidence of these (political] acts to (the Board] for (its] consideration along with many other things, to determine whether or not there is a situation inconsistent with the antitrust laws" - "[t]o show (the]
purpose and effect of other acts" (tr. 779).
2/ See also Prehearing Order Number Two, Nov. 27, 1972, pp. 2-3.
W e
The Board twice has rejected these arguments.
As the Board indicated, the exception in Noerr requires a finding that attempts to influence governmental action are both " sham" and a direct interference in the business 3/
of a competitor (tr. 792). The instant motion, based as it is on the premise that these prerequisites be read in the alternative rather than in the conjunctive, is merely a third attempt by the Justice Department to have this Board adopt an erroneous interpretation of Noerr.
4/
Indeed, even in the Household Goods case cited by the Department in support of its contentions, the court did no more than apply the Noerr standard in the context of the Pennington dictum. Thus, according to the footnote in Pennington, quoted by the Department in its
-3/ Thus , in Eastern R. R. Presidents Conference v. Neerr Motor Freight, Inc., 365 U.S. 127, 144 (1961), the Court stated:
There may be situations in which a pub-licity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the' business relationships of a competitor and the application of the Sherman Act would be justified.
4/ Household Goods Carriers' Bureau v. Terrell, 452 F.2d 152 (5th Cir. 19 71) .
motion, it would be "within the province" of the trial judge to admit otherwise-privileged evidence of political activity where he found it (1) " prob ative" , (2) "not unduly prejudicial" and (3) where the evidence "tends reasonably to show the purpose and character of the particular trans-actions under scrutiny." United Mine Workers of America
- v. Penn uqton, 381 U.S. 657, 670-71 n.3 (1965).
Following this dictum, the court in Household Goods, a private antitrust action, upheld the admissability of evidence of defendants' attempts to influence two govern-mental agencies "as circumstantial proof of the purpor3e and character of the actions of the ( co-conspirators ] . " 452 F.2d at 158 & n.18. The basis on which those attempts were initiated, however, was the circulation by defendants of a
" libelous" letter " questioning the accuracy of [ plaintiff's product], threatening a complaint to the ICC, and stressing the undesirable competitive effects on the industry that would flow from the adoption of a competitive (mileage] guide." Id at 156, 157. Thus while a mere approach to a governmental agency to influence its' actions may be privileged political activity, within the meaning of the Pennington footnote, the use of
libelous material as a means of obtaining favorable action clearly is within the sham exception of Noerr and so taints the entire process. The action taken by the defendants in Household Goods, therefore, met both prerequisites of the Noerr exception: the approach to the governmental agencies was a sham, being based on false and misleading statements, and it constituted a direct interference with the business e
of defendants' competitor.
- 2. Constitutional Priorities The Department proposes an extreme position on political activity. Acceptance of it would entail subordi-nating Applicant's First Amendment rights to the Atomic Energy Act. Such a result would be directly at odds with the spirit, if not the letter, of the holding in Noerr.
Thus, while the Court in Noerr felt that " [blecause of the view (it took] of the proper construction of the Sherman Act," it was not necessary to consider the issue of whether "the activities complained of were constitutionally protec-tad under the First Amendment," it nevertheless included 5/ 365 U.S. 127, 132 n.6 (1961).
l
in its rationale the importance of preserving constitu-tional rights. The Court rejected "a holding that the Sherman Act forbids associations for the purpose of in-fluencing the passage or enforcement of laws," and stated:
In the first place, such a holding would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade. In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representative. * ** Secondly, and of at least equal significance, such a construction of the Sherman Act would raise important constitutional questions.
The right to petition is one of the f ree-doms protected by the Bill of Righ ts , and we cannot, of course, lightly impute to Congress an intent to invade these free-doms. [365 U.S. at 137-38, emphasis supplied. ]
The Department of Justice is attempting to " lightly impute to Congress an intent to invade [ Applicant's] freedoms".
by arguing that Congress framed the antitrust review of nuclear plant licenses in terms of " inconsistency" with, rather than " violation" of, the antitrust laws. This con-struction turns upside down the priorities which must be applied when considering the protection of constitutional
rights. Accordingly, the Department's position should be rejected.
- 3. The Chilling Effect Finally, the Department argues that correction of a situation " inconsistent" with the antitrust laws by imposing license conditions "is not to penalize the Appli-cant for exercising First Amendment rights or enjoin such exercise * * *". Department's Motion to Resettle, p. 2.
This contention, too, was raised and rejected earlier in this t
proceeding in regard to discovery. See, e.g. , Answer of the Department of Justice to Applicant's Objections to Document Request and Motion for Protective Orders, Oct. 25, 1972, pp. 15-17. The Department and Intervenors are seeking to impose conditions which Applicant is resisting. The imposi-tion of these requirements against Applicant's will can fairly be regarded as " penalizing" Applicant.
The Department's position also erroneously assumes that Applicant's First Amendment rights would not be " chilled" by the remedies sought since no injunctive relief was re-quested to prohibit Applicant's future political or legal activities. The Department once again has misinterpreted how l
these rights might be chilled. The " chilling", impact upon Applicant's First Amendment rights has nothing to do with punishment for past political activity or with the I
outcome of this proceeding. Rather, whatever the outcome, the use of Applicant's political activities will put Appli-cant on notice that the assertion of these rights is not inviolate. This knowledge, in turn, will inevitably inhibit Applicant's future exercise of its First Amendment rights . "[I]nhibition as well as prohibition against the exercise of precious First Amondment rights is a power denied to government." Lamont v. Postmaster General, 3 81 U.S. 301, 309 (1965) (Brennan, J., concurring) . See also Baird v. State Bar of Arizona, 401 U.S. 1 (1971) ; Baggett
- v. Bullitt, 377 U.S. 360 (1964).
In sum, the Department has not sustained its burden of showing good cause why the Order of the Board regarding subissue 3(i) should be resettled. Rather, all it has done is reargue points already considered and re-jacted by the Board.
I
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I For the reasons st&ted above, Applicant submits )
that the motion of the Justice Department to resettle subissue 3(i) should be denied.
Respectfully submitted, George A. Avery Keith S. Watson Toni K. Golden WALD, HARKRADER & ROSS 1320 Nineteenth Street, N.W.
Washington, D. C. 20036 Attorneys for Applicant April 11, 1973
UNITE'D STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) Docket Nos. 50-269A, 50-270A,
) 50-287A, 50-369A, DUKE POWER COMPANY ) 50-370A (Oconee Units 1, 2 & 3 )
McGuire Units 1 & 2) )
CERTIFICATE OF SERVICE
' I hereby certify that copies of the attached APPLICANT'S ANSWER TO MOTION OF DEPARTMENT OF JUSTICE TO RESETTLE PREHEARING ORDER NUMBER SIX, dated April 11, 1973, in the above-captioned matter has been served on the follow-ing by deposit in the United States mail, first class or air mail, this eleventh day of April, 1973.
Walter W. K. Bennett, Esquire J. O. Tally, Jr., Esquire P. O. Box 185 P. O. Drawer 1660 Pinehurst, North Carolina 28374 Fayetteville, N. Carolina 28302 Joseph F. Tubridy, Esquire Troy B. Connot, Esquire 4100 Cathedral Avenue, N.W. Reid & Priest Washington, D. C. 20016 1701 K Street, N.W.
Washington, D. C. 20006 John B. Farvakides, Esquire Atomic Safety and Joseph Rutberg, Esquira Licensing Board Panel Benjamin H. Vogler, Esquire Atomic Energy Commission Antitrust Counsel for Washington, D. C. 20545 AEC Regulatory Staff ,
Atomic Energy Commission Atomic Safety and Washington, D. C. 20545 Licensing Board Panel Atomic Energy Commission Mr. Frank W. Karas, Chief Washington, D. C. 20545 Public Proceedings Branch Office of the Secretary Abraham Braitman, Esquire of the Commission Special Assistant for Atomic Energy Commission Antitrust Matters Washington, D. C. 20545 Office of Antitrudt and Indemnity Joseph Saunders, Esquire Atomic Energy Commission Antitrust Division Washington, D. C. 20545 Department of Justice Washington, D. C. 20530
William T. Clabault, Esquire J. A. Bouknight, Jr., Esquire David A. Leckie, Esquire David F. Stover, Esquire Antitrust Public Counsel Section Tally, Tally & Bouknight Department of Justice Suite 311 P. O. Box 7513 429 N Street, S. W.
Washington, D. C. 20044 Washington, D. C. 20024 Wallace E. Brand, Esquire Antitrust Public Counsel Section Department of Justice P. O. Box 7513 Washington, D. C. 20044 Wald, Harkrader & Ross By:
Attorneys for Duke Power Company 1320 Nineteenth Street, N. W.
Washington, D. C. 20036 4
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