ML19319C560
| ML19319C560 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 06/04/1975 |
| From: | Grier B NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | Moore V Office of Nuclear Reactor Regulation |
| References | |
| IE-CEO-75-13, NUDOCS 8002190996 | |
| Download: ML19319C560 (2) | |
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UNITED STATES OF AMERICA NUC LEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
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The Toledo Edison Company, et al.
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Docket No. kO-346C (Davis-Besse Nuclear Power Station, )
Unit 1)
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The Cleveland Electric Illuminating
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Docker Nos. 50-440A Company, et al.
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50-441A (Porry Nuclear Power Plant, Units
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l and 2)
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PETITION OF THE CITY OF CLEVELAND, OHIO, FOR RECONSIDERATION OF THE BOARD'S MEMORANDUM AND ORDER ISSUED SEPTEMBER 19, 1975 Pursuant to Section 2. 771 (10 C. F. R. ] 2. 770), the City of Cleveland (Cleveland) hereby petitions this Appeal Board to reconsider its Memorandum and Order issued September 19, 1975. Cleveland is a party to these pro-ceedings and is aggrieved by the Appeal Board's Order.
Cleveland believes the Appeal Board's Order is erroneous in the following respects:
1.
The Appeal Board erred in declining to direct certification of the merits of the Special Master's rulings.
2.
The Appeal Board erred in holding that the delegation of authority to make a final decision on discovery matters to a special Master did not violate Section 034 of Chapter 0106 of the AEC Manual.
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8002190
p 3.
The Appeal Board erred in holding that there was a valid agree-ment of the parties with respect to reference to a Special hiaster for a final decision.
4.
The Appeal Board erred in holding that the parties were by agreement _ precluded from seeking review of the Special Master's decision now or in the future.
5.
The Appeal Board erred in holding that the rulings of the Special Master were within the scope "of the jurisuiction conferred upon him by the agreement. "
6.
The Appeal Board erred in holding that the parties could by agreement confer jurisdiction upon the Special Master.
7.
The Appeal Board erred in holding that the decision of the Special Master was final and at the same time holding that the decision of the Special Master was interlocutory and thus nct subject to appeal because of Commission Rule Section 2. 730(f).
8.
The Appeal Board's decision and findings are not supported by substantial evidence, are contrary to the evidence of record, and are contrary to law.
DISCUSSION It is clearly inconsistent for the Appeal Board to hold that Cleveland's appeal is " addressed exclusively to interlocutory rulings of the Licensing Board and of the 'Special Master'... " (mimeo. p. 2) and in the same order to find that the parties are precluded "from seeking review, now or
'in the future" of the rulings of the Special Master (mimeo. p. 3).
. The Special Master's decision cannot be both interlocutory and final at the same time. Accordingly, if the decision of the Special Master is final, the Appeal Board erred in relying upon Section 2. 730(f) of the Com-mission's Rules to deny Cleveland its right to appeal. Conversely, if the Special Master's decision is interlocutory, then the Appeal Board erred in finding that the Special Master's decision was final.
At the time the alleged agreement of Se parties was made, Section 1. 2 of the Commission's rules was still in effect. Section 1. 2 provided $at the AEC Manual made the definitive statement of delegation of authority to Atomic Safety and Licensing Boards. The AEC Manual precludes redelega-tion of the authority delegated to such Boards. There is no provision in de Rules of the Commission or the AEC Manual which would permit the parties to a proceeding to stipulate to a delegation of authority which de Manual has expressly stated may not be redelegated. The Appeal Board's reliance on Section 2. 753 of the Commission's Rules is misplaced. Section 2. 753 merely provides in general terms that de Board may ucon motion approve a stipulation of de parties as to a procedural matter. There is nothing in that rule which would permit the parties by stipulation to create jurisdiction in a Special Master through delegation of a non-delegable authoritf to make binding determinations of disputed discovery matters. Nor is there any basis for permitting the Chairman of the Board to, sua sconte, propose such a stipulation.
4 The real issue is not whether the parties may stipulate referral of a discovery matter to a Special Alaster to make a report to the Board.
What is at issue is whether Section 2. 753 permits the parties to create jurisdiction by stipulation. The law is certain that jurisdiction cannot be created by stipulation. It may very well be true that the parties might have resolved the privilege issues among themselves by any matter they chose.
However, when the parties referred the issue to the Board, they invoked the jurisdiction of the Board which cannot be delegated. Once the Board's jurisdiction was invoked, neither the Board nor the parties could delegate that authority to another although they could have settled the matter them-selves thus rendering decision by the Board moot.
Similarly, the Appeal Board's reliance on Rule 29, Federal Rules of Civil Procedure, is misplaced. Unlike the Commission's rules and de AEC Manual, the Federal Rules provide specifically for referral to a Special Master. Thus, under the Federal Rules there is no need to harmo-nize a general rule permitting procedural stipulations with a specific pro-hibition against the redelegation of authority as there is in this case.
As was pointed out in Applicants' brief, even in the Federal courts it is by no means certain that a Special Master may make final, binding decisions with respect to fact and law. Moore's Federal Practice, Vol. 5A, states repeatedly that the Special Master in Federal courts does not make final, binding determinations. Moore's Federal Practice states at page 2981:
[The master's report] should be in such form that it will properly aid the tribunal in arriving at a deci-sion on the matter referred.
- and at page 2902:
In a non-jury or court action, on the other hand, the master's report is to aid the court in making a decision.
and at page 3001:
It is the trial court, not the master, that renders judgment.
and at page 3021:
The master's conclusions of law have no effect except to the extent that they are correct propositions of law.
The fact that the parties were unaware of the AEC Manual provision at the time that they entered into the alleged agreement cannot negate the provisions of the Manual. Nor can it create any greater power in the parties to create jurisdiction by stipulation.
The evidence before the Appeal Board including the statements of counsel during oral argument demonstrated that there was in fact no meeting of the minds with respect to the nature and extent of the alleged agreement to be " bound" by the Special Master's decision. Moreover, each party read the December 10 order of the Board as consistent with its own understanding of the alleged agreement. Thus there was a latent ambiguity in the Board's order which was not apparent until after the Special Master's decision was entered. Since there was no meeting of the minds, there was no agreement. Hence, even if referral to a Special Master for a final deci-sion were permissible under Rule 2. 753 when the parties so stipulated, it would not be permissible in this case.
6-It defies logic to argue that the parties would agree to forego all 4
appeal rights with respect to one ruling on discovery and yet preserve all other rights of appeal.
Moreover, even assuming, arguendo, a valid enforceable stipulation j
and a valid redelegation of authority, an implied term of the stipulation must be that the Special Master correctly follows the law, does a workman-like job, and that the parties be accorded a fair hearing. Since the Special i
Master ignored the law, denied Cleveland a fair hearing and did not do a workmanlike job, it cannot be said that his decision was made within die
' scope of his authority.
_ WHEREFORE, the City of Cleveland prays that the Appeal Board reconsider its Memorandum and Order of September 19, 1975, and enter an order directing certification on the merits and enter findings that there was no valid stipulation, that the redelegation of authority to the Special i
Master was unlawful, that the Special Master erred, and that judgment be i
entered for the City of Cleveland on the merits of its appeal.
Respectfully submitted, lh l
CV i
Reuben Goldberg,
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David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt i
1700 Pennsylvania Avenue, N. W.
a ames B. Davis Washington, D. C.
20006 l
Director of Law Telephone (202) 639-2333 Robert D.- Hart First Assistant Director of Law At'.orneys for City of Cleveland, Ohio City of Cleveland City Hall, Room 213 Cleveland, Ohio 44114 Telephone (216) 694-2737 September 29, 1975 w
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CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Petition of the City of Cleveland, Ohio, for Reconsideration of the Board's Memorandum and Order Issued September 19, 1975, has been made on the following parties listed on the attachment hereto this 29th day of September, 1975, by depositing copies thereof in the United States mail, first class, postage pre paid.
K1Ac. 7Wf David C.'Hjelr:dfelt Attachment i
ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.
U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C.
20555 Suite 777 1700 Pennsylvania Avenue, N. W.
Mr. Frank W. Karas, Chief Washington, D. C.
20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatory Commis sion AM P - O, In c.
Washington, D. C.
20555 Municipal Building 20 High Street Douglas V. Rigler, Esq. Chairman Hamilton, Chio 45012 Atomic Safety and Licensing Board Foley, Lardne r, Hollabaugh Melvin C. Berger, Esq.
and Jacobs Joseph J. Saunde r s, Esq.
Schanin Building Steven Charno, Esq.
815 Connecticut Avenue, N. W.
Antitrust Division Washington, D. C.
20006 Department of Justice Post Office Box 7513 Ivan W. Smith, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board Panel William T. Clabault, Esq.
U. S. Nuclear Regulatory Commis sion David A.
Le ckie, Esq.
Washington, D. C.
20555 Department of Justice Post Office Box 7513 John M. Frysiak, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commis sion Gerald Charnoff, Esq.
Washington, D. C.
20555 Shaw, Pittman, Potts & Trowbridge 9 10 17th Street, N. W.
Benjamin H. Vogler, Esq.
Washington, D. C.
20006 Joseph Ruther g, Esq.
Office of the General Counsel Frank R. Clokey, Esq.
Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Towne House Apartments Washington, D. C.
2C555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq.
Thomas J. Muns ch, Jr., Esq.
Roy P. Le s sy, Jr., Esq.
General Attorney Office of the General Counsel Duquesne Light Company Re gulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C.
20555 David McNeil Cids, Esq.
Abraham Braitman, Esq.
John McN. Crame r, Esq.
Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nuclear Regulatory Commission Post Office Box 2009 Washin gton, D. C.
20555 Pittsburgh, Pennsylvania 15230 S
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ATTACHMENT (Continucd)
John R. White, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Chio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr., Esq.
Pennsylvania Power Company Cox, Langfo rd & B rown 1 East Washington Street 21 Dupont Circle, N. W.
New Castle, Pennsylvania 16103 Washington, D. C.
20036 Lee C. Howley, Esq.
Donald H. Hauser, Esq.
Vice President and General Counsel Co rpo rate Solicito r The Cleveland Electric Illuminating Co.
The Cleveland Electric Illuminating Co.
Post Office Box 5000 Post Office Box 5000 Cleveland, Chio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals 3d.
U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commis sion Wa shington, D. C.
20555 Washington, D. C.
20555 Dr. John H. Buck Michael C. Farrar Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Ed.
U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commis sion Washington, D. C.
20555 wa s hingto n, D. C.
20555 D r. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals 3d.
U. S. Nuclear Regulatory Commission U. S. Nuclear Regulato r'f Commis sion Washingto n, D. C.
20555 Wa s hin gto n, D. C.
20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East B road Street, 15th floor Antitrust Section Columbus, Chio 43215 30 East Broad Street, 15th floor Columbus, Chio 43215 Christopher R. Schraff, E sq.
Assistant Attorney General Howard K. Shapar, Esq.
Environmental Law Section Executive Legal Director 361 East B road Street, 8th Floor U. S. Nuclear Regulatory Commission Columbus, Ohio 43215 Wa shin gto n, D. C.
20555 Andrew F. Popper, E sq.
Jo s e ph Rie s e r, Esq.
Office of the Executive Legal Director Reed, Smith, Shaw & McClay U.S. Nuclear Regulatory Commis sion 1155 Fifteenth Street, N. W., Suite 440 Washington, D. C.
20555 Washington, D. C.
20005