ML19319C554
| ML19319C554 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 08/14/1975 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8002190989 | |
| Download: ML19319C554 (6) | |
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g
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AUG 14137.5 > r ATOMIC SAFETY AND LICENSING APPEAL BOARD b
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'4 Alan S.
Rosenthal, Chairman amas Michael C. Farrar, Member g
8 Richard S.
Salzman, Member y,, g.
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In the Matter of
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THE TOLEDO EDISON COMPANY, et al.
) Docket No. 50-346A i (Davis-Besse Nuclear Power Station)
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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, Units 1 & 2) )
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ORDER August 14, 1975 We now have the brief filed by the City of Cleveland in support of its " Notice of Appeal and Exceptions".
The City's principal complaints stem from rulings made by a Special Master who was appointed by the Licensing Board, with the agreement of the parties, to pass upon certain discovery matters.
Based on its reading of the agreement, the Licensing Board has declined to review the Special 1/
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Master's rulings.
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The City requests that, if Lts appeal be held to constitute an impermissib) interlocutory one, we direct the Licensing Boart -- which refused to refer the Master's rulings to ut -- to certify the disputed questions to us.
We have held that the filing of such a request is permissible under our Rules.
Public Service Co. of New Hampshire (Seabrook Units 1 and 2), ALAB-271, NRCI-75/5 478, 482-83.
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.. In its brief (p. 9, fn. 10), the City asserts that it "is not clear from the Commission's Rules of Practice" that "the [ Licensing Board] has the authority to delegate
[its] responsibility to a Special Master."
In light of its agreement to th6 u=c of a Special Master, however, the City does not press this point.
Nonetheless, we believe that an inquiry into the legitimacy of the role played by the Special Master is warranted.
For the AEC Manual provides in so many words that "the delegated authority of Atomic Safety and Licensing Boards may not be further redelegated."
Chapter 0106, Section 034. 2/
Insofar as we are aware, that proscription has not been removed by the new Commission.
This being so, there may be serious question whether, in referring a discovery matter to a Special Master, the Licensing Board was authorized to decree that the Special Master was not to file a report or recommendation but was, instead, to issue a binding decision on the matters referred to him.
That the parties may have agreed to that procedure does not eliminate the question.
Accordingly, we request that the parties include in their answering briefs their views on:
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That delegated authority includes the power to rule on discovery matters.
10 CFR HE2.718(f) and (1), 2.740.
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- 1) whether we
.'m' tid direct certification to us of the question of the validity of the role played by the Special Master in this case;
- 2) whether that role was valid; and not
- 3) assuming that role was/ valid, whether we should remand the matter to the Licensing Board with instructions to treat the Special Master's rulings as recommendations or reports and to entertain objections thereto.
In the event we were to decline to direct certification of the question of the validity of the procedure employed here, or were to hold that procedure valid, there would remain for consideration at least the two central questions which the City has raised, i.e.,
(1) whether we ought to direct certification of the merits of the Special Master's rulings; ~
and (2) whether those rulings are correct.
The briefs of the parties should address those questions as well.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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/ Margaret E. Du Flo Secretary to the Appeal Board 3/
This Board is satisfied that, in view of 10 CFR 52.730 (f),
the merits of those rulings cannot be brought before us at this time by way of an appeal.
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UNITED STATES OF A! ERICA NUCLEAR REGULATORY CCM:!ISSION In the Matter of
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THE TOLEDO EDISON COMPANY, ET AL.)
Docket No. (s) 50-346A CLEVELAND ELECTRIC ILLUMI!' TING )
50-440A d
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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Nuclear Power Plant, Units 1&2))
CERTIFICATE OF SERVICE.
I hereby certify *that I have this day served the foregoing document (s) upon cach person designated on the of ficial service' list ec= piled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirc=ents of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Reg;ilatory Commission's Rules and Regulations.
e Dated at Washington, C. this 197 3.
/Y day af Offi of the Secretary of the Commission 6
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UNITED STATPS or AMrr.!CA NUCLEAR RECUL1 TORY COMIISS'.
.In the P.atter of
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TOLEDO EDISON CO: tat:Y, ET AL.
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Docket No.(s9 50-346A
- CLEVELA
- D ELECTRIC ILL!IIIMATirC
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50-440A CO;2ANY
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50-441A
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SERVICE LIST Douglas Rigler, Esq., Chairman Joseph Rutberg, Esq., Chief 6
Foley, Lardner, Hollabaugh Antitrust Counsel for SRC Staf f U. S.. Nuclear Regulatory Coc=tiscion and Jacobs 815 Connecticut Avenue, N. W.
Washington, D. C.
20555 5
Washington, D. C.
200Cd 2
I Office of intitrust & Inde=nity John H. Brebbia, Esq.
. Atomic Safety and Licenisng. Board-Office of Nuclear. Reactor Regualtion Alston, Hiller, & Caines
.t U. S. Nuclear Regulatory Coc=iission 1776 K Street, N. W.
. Washington, D. C.
20555 Washington, D. C.
20006
-Donald H. Hauser, Esq., Managing Attorney John M. Frysiak, Esq.
Cleveland Elcetric Illu=inating, Atomic $afety and Li:ensing Board U. S. Nuclear R,gulatory Coenission Company 1
Public Square Washington, D. C.
20555
' Cleveland, Ohio 44101 Alan S. Rosenthal, Esq., Chairman Atomic Safety and Li:ensing Appeal Gerald Charno f f, Esq.
Shaw, Pittman, Potts, Troubridge Board U. S. Nuclear Regulatory Cornission and Madden Weshington, D. C.
20555 910 - 17 th S tre e t, N. W.
Washington, 9. C.
20005 Mr. Michael C. Farrer Atomic Safety and Licensing Appeal
' Victor F. Greensliide, Jr., Esq.
The Cleveland Elcetric Illuminating Board U. S. Nuclear Regulatory Co=sission, Company Washington, D. C.
20555 P. O. Box 5003 Cleveland, Ohio 44101 Richard S. Salzman, Esq.
Atomic Safety and Licensing Appeal Lee C. Howley, Esq., Vice-President Boatd and Cencral Counsel U. S. Nuclear Regulatory Coc=tission Cleveland Electric Illuminating Washington, 7. C.
20555 Company P. O. Box 5000
' C1cveland, Ohio 44101 1
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Dockat Nos. 50-346A, 440A, 441A Pcg2 2 David C. Hjelm.fc.c, Esq.
Duncan, Bri
, Vainbarg & Palmar
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1700 Pennsylvanin Avenuet. N. W.
l Michael oldsk, Esq.
1700 Pennsylvania Avenue, N. W.
Suite 77%
Washington, D. C.
20006 Washington, D. C.
20006 Jokin122nsdale,Jr.,Esq.
ReubenColdberg,Esci.
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Arnold Fieldman, Esq.
Cox, L'angford & Brown 1700 Pennsylvania Avenuc, N. W.
21 Dupont Circic, N. W.
Washington, D. C.
20006 Washington, D. C.
20036 Steven M. Charno, Esq.
14s11e Henry, Esq.
Helvin C. Berger, Esq.
W. Snyder, Esq.
Fuller, Henry, Hodge & Snyder Antitrust Division 300 Madison Avenue U. 5. Department of Justice
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Washington, D. C.
20530 Toledo, Ohio 43604 Honorable Thomas E. Kauper
'Mr. George'B. Crosby Assistant Attorney General Director of Utilities Antitrust Division Piequa, Ohio 45350 U. S. Depart =ent of Justice Washington, D. C.
20530 William M. Lewis, Jr.
.'W. M. Lewis & Associates John C. Engle, President
- F. O. Box 1383 Portsmouth, Ohio (;o62 AMP-0, Inc.
Municipal Building M.
- 20 High Street Robert D. Hart, Esq.
Hamilton, Ohio 45012
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Assistant Law Director
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City Hall
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Honorable Richard M. Firestone Cleveland, Ohio 44101 Assistant Attorney General Anthony G. Aiuvalas', Jr., Esq.
Antitrust Section 30 East. Broad Street, 15th Floor Antitrust Division Columbus, Ohio 43215
.Departi: rent of Justice P. O. Box 7513
, Honorable W1111ac J. Brcwn Washington, D. C.
20044 Attorney General State of Ohio
'* Susan' B. Cyphert, Esq.
Columbus, Ohio 43215
' Antitrust Division Department of Justice Honorable Edward A. Matto 727.Few Federal Building Assistant Actorney Gen:ral 1240 East Ninth Street chief, Antitrust Section Cleveland, Ohio 44199 30 East Broad Street, 15th Floor Columbus, Ohio 43215 Perry Public Library 3753 Main Street Honorable Deborah P. Highsmith Perry, Ohio 40081 Assistant Attorney General Antitrust Section Director 30 East Broad Street, 15th Floor Ida Rupp Publ'ic Library
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Columbus, Ohio 43215 Port Clinton, Ohio 43452 Honorable Christopher R. Schraf f Assistant Attorney Cencral Environm:ntal Law Section gg!
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351 East L eoad Street Columbus, C'io 43215 eo O'
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