ML19319C457
| ML19319C457 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 08/27/1975 |
| From: | Brebbia J, Frysiak J, Rigler D Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML19319C452 | List: |
| References | |
| NUDOCS 8002140836 | |
| Download: ML19319C457 (13) | |
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UNITED STATES OF AMERICA ega 7; 5,7,7, NUCLEAR REGULATORY, COMMISSION g
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Before the Atomic Safetv and Licensing Board g
i In the Matter of
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The Toledo Edison Company and
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Docket Nos. 50-346A 1
The Cleveland Electric Illuminating )
50-500A j
company
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50-501A 1
(Davis-Besse Nuclear Power Station, )
Units 1, 2 and 3)
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The Cleveland Electric Illuminating )
Docket Nos. 50-440A Company, et al.
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50-441A (Perry Nuclear Power Plant,
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Units 1 and 2)
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RULING OF THE BOARD ON REQUEST FOR CERTIFICATION BY THE DEPARTMENT OF JUSTICE OF AN APPEAL OF TEE SPECIAL MASTER'S FINDINGS OF PRIVILEGE 1
By Motion of July 8, 1975, the Department of Justice (Justice) requested the Board to certify to the Atomic Safety and Licensing Appeal Board an appeal of the Special Master's findings relating to claims of privilege.
A narrative summary of the events leading to this request is set forth in this Board's July 21, 1975 Ruling in which a similar request for certifica-tion filed by the City of Cleveland (City) was denied.
On July 28, 1975, the City filed a Notice of Appeals and Exceptions before the Appeal Board.
By Order oZ August 14, 1975, the Appeal Board required parties filing answering briefs to the City's notice of Appeals to direct their attention to certain issues including the threshhold question of whether certification should be directed l
8002140 h
- on the question of the validity of the role played by the Special Master in this case.
As we consider Justice's parallel Motion for Certifi-cation, we have before us the Appeal Board Order of August 14, 1975 and we may take into a'ccount the question rtised by the Appeal Board as to whether in light of AEC Manual, Chapter 0106, Section 034, restricting the delegation of authority by Safety and Licensing Boards "an inquiry into legitimacy of the role played by the Special Master is warranted."
I.
The Licensinc Board's Resconsibility We agree that the responsibility for ruling on discovery requests is that of the Board.
In our Memorandum and Opinion of July 21, 1975 denying the City's Request for Appeal, we indicated that one reason for rejecting any claim of ambiguity in the parties' agreement memorialized in the Board's Order of December 10, 1974 was that it was the Licensing Board's responsioility rather than that cf the Appeal Board to make initial discovery rulings.
The procedural regularity of prior Licensing Board review seemed sufficiently obvious as to negate the City's assertion that its intent in December 1974 was to apply directly to the Appeal Board for review of the Master's recommendation.'
City of Clev land's Motion for, Certification of July 8,
1975 p. 10.
The City upined that since an appeal of the Special t
Master. report to the Board would require Board review of the documents "and thereby compromise the Board's position," the City agreed that there was to be no review by the Board of the Special Master's decision.
The City's Motion continued:
"There was never an agreement, and none was ever intended, to give up the right of review by an Appeals Board and ultimately by the courts."
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. As stated in our Ruling of July 21, 1975:
There is nothing so unique about a claim of privilege as to require that the ordinary procedures be abandoned.
Thus, no error would have attached to review by the Board of the privileged documents.
That being so, an unusual appellate procedure designed to bypass the Board would be unnecessary.
This undercuts the City's claim that opportunity for appellate review to the exclusion of this Board was a logical though unspoken condition of the December 10 Order.
as we decide whether to grant Justice's Motion for Certi-
- Thus, fication, we adhere to the. proposition that responsibility for review, if any, of the Master's recommendations and decision properly is that of the Safety and Licensing Board in the initial instance
- II.
The Parties ' December 1974 Sticulation Although this Board is satisfied that the responsibility for review of the Master's decision properly should be lodged with it in the first instance, and althcugh ar indicated in our prior l
ruling, we are unable to express any opinion as to the correct-1 ness of.he Master's ruling since we have made no independent review of the dccuments, we continue to believe that these factors We are are not central to the resolution of the controversy.
presented with'a situation where the present Board must construe the plain and to us unambiguous terms of an Order resulting from This issue is incorporated in the third question the parties to.the appeal were asked to address by the Appeal l
Board in its Order of August 14, 1975..
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a telephone conference call conducted among the parties and the prior Chairman of the Board.
In the interval between the entry of that Order and the release by the Master of his written deci-sion, no party brought to the attention of the present Board any claim of ambiguity, latent or otherwise, in that order.
Our reading of that order has convinced us that the parties voluntarily made an agreement or stipulation that the decision of the Master would be binding.
i As we stated in cur July 21, 1975 opinion relating to 4
I the city's Request for Certification, we do not question that no l
party may be stripped of any right of appeal or review over its objection.
That is not to say, however, that a party may not i
voluntarily enter into a stipulation or agreement relating to i
discovery in which it waives or relinquishes certain rights other-j wise available in return for concessions and considerations made l
by other parties to the agreement.
At the time referral of
" privileged" documents to.a Special Master was proposed, the 3
advantages were conceived to be (1) an opportunity for prcmpt and independent review of a considerable volume of documents, (2) the assurance that members of the Board would not be' exposed to documents which ultimately were rejected from discovery through application of privilege,* and (3) finality.
All of these We reiterate that this may be considered desirable but in no sense mandatory.
In any judicial proceeding, it often is necessary to examine documents ultimately rejected in order to determine if.they are properly subject to discovery.
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_ advantages were evident to the parties at the time of the December 1974 agreement.
Conversely, the Board believes certain disadvan-tages were apparent, one of which was relinquishment of the right of review in the event of dissatisfaction with the Master's deci-sion.
In any contest over the discoverability of any documents, there must be a winner and a loser, and this fact was well known to the parties at the time they entered into an agreement which provided for a final resolution.of the issue.
As a result of the Appeal Board's August 14 Order, we recognize a concern that an Atomic Safety and Licensing Board not subdelegate its authority in contradiction to the language of the AEC Manual.
However, 10 CFR Section 2.753'of the Commission's Rules seems applicable to the present situation.
Section 2.753 provides that the parties may stipulate in writing at any stage of a proceeding certain relevant facts and that such stipulatiens may be received in evidence.
The Rule continues:
The parties may also stipulate as to the procedure to be followed in the proceeding.
Such stipulations may, on motion of all parties, be recognized by the presiding officer to govern the conduct of the pro-ceeding.
Viewed as a stipulation as to the procedure to be folicwed, the appointment of the special Master in December 1974 appears to j
conform to the procedures authorized by this Rule.
The Board's Order of Decembe r 10, 1974 may be considered as a stipulation, on the motion of all parties, recognized by the presiding officer -
i.e.,
incorporated in the December 10 Order - to govern the conduct 1
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of the proceeding.
As such, we see no, conflict between the pro-cedure employed and the referenced language in the AEC Manual.
An analogy to the resolution of other disccvery matters in this proceeding and other proceedings may be helpful.
Not infrequently, motions to produce documents and interrogatories of broad scale, both in terms of the number of documents sought and the duration of events for which discovery is sought, are served upon the parties.
The scale of these discovery requests frequently leads to the filing of objections; and a decision as to the proper scope of discovery plainly is within the authority of the Licensing Board.
Notwithstanding the authority of the Licensing Board to rule upon these objections, however, it is customary for the parties to attempt to resolve these controversies by discussions among themselves.
In the instant proceedings, the Board has directed the parties to conduct such discussions before reque.eting argument to the Board with respect to any unresolved discovery issues.
It is cut observation that this practice, adhered to both in judicial and administrative proceedings, is of substantial benefit in reducing the amount of time necessary to conclude prehearing discovery.
To the extent that parties make agreements or stipula-tions among themselves which have the effect of eliminating objections or amending the scope of discovery requests, the Board, in most instances, is prepared to take into account and, if necessary, to enforce these agreements.
The basis of this
.- enforcement would nat rest upon the legal correctness of the concessions made during the parties' negotiations, but rather upon i
the principle that one making a bargain ought to fulfill his obligation, particularly where there appears to have been a j
reasonable quid pro quo associated with the agreement.
The i
j situation described above is not substantially different frem the i
controversy relating to privileged documents now before this
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l Board.
III.
Fairness and Due Process 1
l There is yet another troublesome aspect involved in J
8 overcoming the agreement of the parties to be bound by the deci-sion of the Master to which we have not addressed ourselves.
That issue is one of fairness and of according due process to the i
parties who have adhered strictly to the terms of the December 10, i
lf'4 agreement and Order.
In response to the Master's decision, 1
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at least some parties have turned over documents despite their professed concern that'the Master erred in reaching his conclusions.
Prior to turnover, these parties indicated that they felt bound by I
the decision of the Master and that they were aware that their agreement ~to be bound relinquished voluntarily any rights for further appeal.*
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Once again, we emphasize that we do not hold that rights of appeal did not e:.:ist; we say instead that the parties gave up those rights in order to secure what they must have seen
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as compensating advantages.
(In judicial proceedings, by further j
analogy, a party may waive, by formal consent, its right to a jury trial).
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! If this Board or the Appeal Board were to find the Board's December 10 Order not to preclude possibility of further i
i review, that review properly should apply to all challenged decisions of the Master.
Such a review would be frustrated, however, since those parties who have complied with the Master's decision effectively would be deprived of the opportunity to safeguard or withhold documents which they contend never should I
have come into the possession of other parties to these pro-ceedings.
IV.
Conclusion As has become evident, we feel compelled to reject the Request for Certification of Justice.
In doing so, we adhere to the opinion expressed in our Memorandum and Order of July 21, 1975, denying certification to the City, that the result is mandated by the language of the Board's December 10, 1974 Order which we f
l continue to regard as unequivocal and unambiguous.
We regard the enforcement of this agreement, which the Order recites was entered into by agreement of all of the parties, as being within the pro-vision of Rule 2.753 which permits stipulation as to procedures to be finalized by recognition of the presiding officer.
The Rule reads broadly in terms c f the subject matter permitting, as it does, j
' stipulations as to "any relevant fact."
To us this encompasses stipulations affecting documents subject to claim of privilege.
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Our decision with respect to the intent and meaning of the December 10, 1974 Order is dispositive.
Assuming, however,
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that we are in error as to the enforceability of the consensual stipulations, we would not deny that this Board is the logical and appropriate review forum with respect to the Master's deci-sion.
We are unable to express any opinion with respect to the merits of the Master's decision for the reasons stated above.
Although we decline to certify the privilege question, we serve copies of this Memorandum and order upon the Appeal Board because of the relationship of this decision to the issues already set for briefing by the Appeal Board in its August 14, 1975 Order.
We do so in order that the Appeal Board be fully apprised of our thinking and in order to compress to the minimum the time necessary for the Appeal Board to reach its decision.
We note for the record that without objection from any party, we recently have revised the schedule in these proceedings to provide for commencement of hearings on or abour October 30, 1975.
ATOMIC SAFETY AND LICENSING BOARD John H.
Brebbia, Member oAM1CLx John M. Frygiak, Member e
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Rig r, Chairman Dated at Bethesda, Maryland this 27th day of August 1975.
ImITED STMES OF A ! ERICA NUCLEAR REGULATORY CC:: MISSION In the Matter of
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THE TOLE 20 EU:30:: CC:'.PA:.i', ET AL. )
Docket No.(s) 50-346A CLEVELA!:D ELECTRIC ILLUMINATING )
50-440A COMPANY
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50-441A
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(Davis-Besse Nuclear Power
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Station, Unit No. 1; Perry
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l Nuclear Power Plant, Units 1&2))
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CERTIFICATE OF SEnt/ ICE i
I have this day served the foregoing document (s)
- I hereby certify that upon cach person designated on the official service list compiled by the Of fice of the Secretarf of the Carmission in this proceeding in accordance uith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Cocmission's Rules and
-Regulations.
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i Dated at Washington, D.C. this M/
day of dW 197[.
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2 Nh O
Offic( 6f the Secretary of the Com-/ssion
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- 1 - Ruling of the 3d w/ Respect to Motion of the City of Cleveland... dtd S/27/73
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2 - Ruling of the 3d on Request for Certification... dtd S/27/75 r
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In the Matter of
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Docket No.(s) 50-346A (Davis-3 esse Unit 1)
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CLEVE'.AND E'.ECTRIC ILLUMINATING
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50-440A
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(Perry Units 1 and 2)
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50-500A (Davis-Sesse Units 2 and 3)
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50-501A gy-, : :-.
e-Douglas Rigler, Esq., Chair:.an Joseph Rutberg, Esq.
Foley, Lardner, Hollabaugh & Jacobs Antitrust Counsel 815 Connecticut Avenue, N.
W.
Counsel for NRC Staf f Wast.ington, D. C.
20006 U. S. Nuclear Regulatory Commission Washington', D. C.
20555 John M. 3rebb ia,F s q.
Atomic Safety and Licensing 3 card Office of Antitrust i Indemnity Alston, Miller and Gaines Office of Nuclear Reactor Regulation 1776 K Street, N. W.
U. S. Nuclear Regulatory Co= mission Washington, D. C.
20006 Washington, D. C.
20535 John M. Frysiak, Esc.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing 3oard Roy P. Lessy, Jr., Esq.
U. S. Nucleac Regulatory Co==ission Antitrust Counsel Washing:on, D. C.
20555 Counsel for NRC S ta f f U. S. Nucicar Regulatory Co= mission Alan S. Rosenthal, Esq., Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Donald H. Rauser, Es7.
U. S. Nuclear Regulatory Co= mission Victor F. Greenslade, Jr., Esq.
Washington, D. C.
205.53 Cleveland Electric :lltzinating Company Mr. Michael C. Farrar P. O. Box 5000 Atomic Safety and Licensing Appeal Cleveland, Ohio 44101 3oard U. S. Nuclear Regulatory Commission Joseph J. Saunders, Esq., Chief Washington, D. C.
20535 Public Counsel and Legislative Section Antitrust Divis ion Atomic Safety and Licensing Appdal U. S. Department of Justice Board Washington, D. C.
20530 U. S. Nuclear Regulatory Commission Washington, D. C.
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su-340A, -440A, -441A, -500A, -501A paga 2
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Honorable Edward A. Matto Shaw, Pittman, Potts, Trowbridge Assistant Attorney General and Madden Chief, Antterust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washington. D. C.
20006 Colu= bus, Ohio 43215
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Lee C. Howley, Esq., Vice President Honorable Deborah P. Highs =1th and General Counsel Assistant Attorney General Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th Floor P. O. Box 5000 Colu= bus,0h io 43215 Cleveland, Ohio 44101 Honorable Christopher R. Schraf f David C. Hjel= felt, Esq.
Assistant Attorney General Michael Oldak, Esq.
Environ = ental Law Section 1700 Pennsylvania Avenue, N. W.
351 East Broad Street Washington, D. C.
20006 Columbus, Ohio 43215 Reuben Goldberg, Esq.
Duncan, Brown, Weinberg & Palmer
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Arnold Field =an, Esq.
1700 Pennsylvania Avenue, N W.
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1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 l
Washington, D. C.
20006 John Lansdale, Jr., Esq.
Steven M. Charno, Esq.
Cox, Langford & 3rown Melvin G. Berger, Esq.
21 Dupont Circle. N. W.
Antitrust Division Washington, 3. C.
20036 U. S. Department of Justice Washington, D. C.
20530 Leslie Henry, Esq.
W. Snyder, Esq.
i Honorable Tho=as E. Kauper Fuller, Henry, Hodge & Snyder j
Assistant Attorney General 300 Madison Avenue Antitrust Division Toledo, Ohio 43604
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U. S. Depcrement of Justice j
Washington, D. C.
20530 Mr. George S. Crosby I
Director of Utilities i
John C. Engle, President Piqua, Ohio 45350 l
AMP-0, Inc.
I Municipal Building William M. Lewis, Jr.
1 20 High Street W. M. Lewis & Associates j
Hamilton, Ohio 55012 P. O. Box 1383 Portsmouth, Ohio 45662 Honorable Richard M. Firestone i
l Assistant Attorney General Robert D. Hart, Esq.
Antitrust Section Assistant Law Director
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30 East Broad Street, 15th Floor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Honorable William J. Brown Anthony G. Aiuvalasit, Jr., Esq.
Attorney General Antitrust Division State of Ohio Depart =ent of Justice Columbus, Ohio 43215 P. O. Box 7513 Washington, D. C.
20044
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30-346A, -440A, -441A, -500A, -501A Pega 3 Susan 3. Cyphert, Esq.
Antitrust Division Cepar: tant of Justice 727'e. Federal 3;;; din; 2140 East Ninth Street Cleveland, Ohio 44199 David M. Olds, Esq.
Reed, Smith, Shaw and McClay
?. O. Box 2009 Pittsburgh, Pennsylvania 15230 T.:::as A. Ka yuha, Esq.
47 North Main Street Akron, Ohio 44308 Perry Public Library 3753 "ain Street Perry, Ohio 44081 Director Ida Rupp Public Library 301 Madison Street Port Clinton, Ohio 43452
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