ML19329D317
| ML19329D317 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 03/15/1976 |
| From: | Goldberg J, Lessy R, Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270909 | |
| Download: ML19329D317 (8) | |
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A/R C k%J / M, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i n.-
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- BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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THE TOLEDO EDIS0N COMPANY and NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING 50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station,
)
Units 1, 2 & 3)
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THE CLEVELAND ELECTRIC ILLUMINATING
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NRC Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
)
Units 1 & 2)
)
STAFF'S ANSWER TO MOTION OF CITY OF CLEVELAND FOR AN ORDER OF THE BOARD ENFORCING ITS ORDER OF DIS 00ALIFICATION On November 20, 1975, the City of Cleveland.(City) moved the pre-siding Atomic Safety and Licensing Board (Board). to disqualify the law firm of Squire, Sanders & Dempsey (SS & D), including its {lashington office, Cox, Langford & Brown, from participating in this proceeding as counsel for CEI or any other applicant. After oral argument on the City's original disqualification motion, this Board, on January 20, 1976, issued its " Memorandum and Order of the Board Suspending Counsel from Further Par-ticipation as Attorney in these Proceedings" (Memorandum and Order), in which.it (1) preferred charges against SS & D, stated the grounds therefor, and in accordance with 10 CFR 32.713(c) referred the charges to another Atomic Safety and Licensing Board (Special Board); and (2) granted the suspension as requested by the City, but stayed the effectiveness of its.
order of' suspension until a report was received from the Special Board.
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-a Mr. Smith dissented from the presiding Board's Memorandum arid Order and issued a " Dissenting Memorandum."
i On February 3,1976, the Special Board heard on1 argument from the City and SS & D.
The Special Board, on_ February 25, 1976, issued its
" Board Ruling in Special $2.713 Proceeding" (Special Board's Ruling),
.in which:
(1) it found no evidence of unethical conduct by SS & D in the record; (2) it held that CEI should be permitted to retain the legal counsel of its choice in this proceeding; and (3) it dismissed the charges preferred against SS & D by the Board and vacated the Board's 1/
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suspension order.
By motion dated March 1,1976, the City moved this Board to make effective its suspension order of January 20, 1976, or, in the alternative, to certify the issue to the Atomic Safety and Licensing Appeal Board.
The Staff is not in agreement with the City's position that this Board make effective its suspension order of January 20, 1976.
It is our view that the ruling of the Special Board is controlling with respect
-toti$ismatter. The scheme of 10 CFR 52.713 is to provide for a review of certain rulings of a. Licensing Board by another Board which presumably can bring to bear on the issues involved a more disinterested and ob-jective view,ooint.
To consider the final ruling of this Special Board as-advisory and subject to the discretionary adoption or non-adoption by
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If Mr. Luton issued a separate " Opinion".
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3-the Licensing Board appears to us as defeating the very purpose of es-tablishing such a Special Board. Unfortunately, there are no prece-dential rulings by the Appeal Board or the Comission regarding the finality of decisions by such a Special Board.
Furthermore, the regu-lation and the Statements of Consideration that accompany the promulgation of the present 10 CFR 52.713 do not shed any light on the matte Accordingly, in our view, a rule of reason must apply and that clearly points to a finding that the Special Board's ruling on the matter re-ferred to it must be accorded finality.
'. If the Special Board's ruling is deemed final, what form of appeal is available to a disappointed party? As we see it, there are three forms of relief.
One, of course, is to consider the ruling an inter-mediate ruling subject to the filing of exceptions to the ultimate initial decision in the proceeding. Another is for a part'y' to request the Special Board to refer its ruling to the Appeal Board in accordance with the provisions of 10 CFR 52.730(f). A third form of relief would be for a party to request the Licensing Board to certify the question to the Appeal Board for its determination in accordance with 10 CFR 52.718(i) and Section V(f)(4) of Appendix A of 10 CFR Part 2.
- Under the circumstances present and particularly because of the varying views on the scope and nature of 10 CFR 22.713 we would have no
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2] 37 FR 15127 L-
objections to the Licensing Board granting the City's alternative motion to certify the question to the Appeal Board.
In our view this is the appropriate procedure to achieve an expeditious resolution of the questions regarding the scope of a Board's authority and the finality of the ruling by the Special Board. The questions to be posed to the Appeal Board would appear to clearly meet the guidance set forth in Section V (f)(4),10 CFR Part 2, since they involve major and novel questions of policy, law or procedure which cannot be resolved except by the Appeal Board or the Commission and prompt and final decision is important for the protection of the public interest and to avoid undue delay or serious prejudice to thd interests of a party.
For the reasons discussed above the NRC staff objects to that portion of the City's motion that this Licensing Board make effective its Suspension Order of January 20, 1976 but has no objection,to the City'.s alternative motion that the Licensing Board certify the questions to the Appeal Board in accordance with 10 CFP D. 718(i).
Further, we would urge the Liceneing Board to adopt the questions described above for such certification.
Respectfully submitted,
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Benjamin H. Vogler Assistant Chief Antitrt/st i
Counsel for NRC Staff l
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Roy P., Lessy, Jr.
Counsel for NRC Staff l.
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Qhck R. Goldberg Counsel for NRC Staff f
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Dated at Bethesda, Maryland.
this 15th day of March 1976.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of THE :') LED 0 EDISON COMPANY and
) ' NRC Docket Nos. 50-346A THECLEVELANDELECTRICILLUMINATING) 50-500A C0f!PANY
)
50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
)
THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Ncs. 50-440A COMPANY, ET AL.
50-441A (Perry Nuclear Power Plant, Units 1 & 2)
CERTIFICATE OF SERVICE I hpreby certify that copies of STAFF'S ANSWER T0- MOTION OF CITY OF CLEVELAND FOR AN ORDER OF THE BOARD ENFORCING ITS ORDER CF DISQUALI-FICATION, dated March 15, 1976, in the caotioned matter, have been served upon the following by deposit in the United States mail, first class or air mail this 15tn day of March 1976:
Douglas V. Rigler, Esq.
Docketing and Service Section Chairman, Atomic Safety and Office of tha Secretary Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington, D.C.
20555 and Jacobs 815 Connecticut Avenue, N.W.
Joseph J. Saunders, Esq.
Washington, D.C.
20006 Antitrust Division Department of Justice Ivan W. Smith, Esq.
Washington, D.C.
20530 Atomic Safety and Licensing Board Steven M. Charno, Esq.
U.S. Nuclear Regulatory, Comission Melvin G. Berger, Esq.
Washington, D.C.
20555 Janet R. Urban, Esq.
P. O. Box 7513 John M. Frysiak, Esq.
Washington, D.C.
20044 Atomic Safety and Licensing Board Reuben Goldberg, Esq.
. U.S. Nuclear Regulatory Comission David C. Hjelmfelt, Esq.
l Washi.ngton, D.C.
20555 Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N.W.
Atomic Safety and Licensing Suite 550 Board Panel Washington, D.C. -20006 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
' James B. Davis Terence H. Benbow, Esq.
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Director of Law i
A. Edward Grashof, Esq.
Robert D. Hart Steven A. Berger, Esq.
1st Assistant Director of Law Winthrop, Stimson, Putnam City of Cleveland
& Roberts 213 City Hall 40 Wall Street Cleveland, Ohio 44114 New York, New York 10005 Gerald Charnoff, Esq.
Thomas J. Munsch, Esq.
Wm. Bradford Reynolds, Esq.
General Attorney Robert E. Zahler, Esq. '
Duquesne Light Company
-Jay H. Bernstein, Esq.
435 Sixth Avenue Shaw, Pittman, Potts &
Pittsburgh, Pa. 15219 Trowbridge 1800 M Street, N.W.
David Olds, Esq.
Washingten, D.C.
20036 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Frank R. Clokey, Esq.
Union Trust Building Sp(cial Assistant Box 2009 Attorney General Pittsburgh, Pa.
15230 Room 219
-Towne House Apartments Lee A. Rau, Esq.
Harrisburg, Pa. 17105 Joseph A. Rieser, Jr., Esq.
~ Reed, Smith, Shaw & McClay Donald H. Hauser, Esq.
Madison Building - Rm. 404 Victor F. Greenslade, Jr., Esq.
115515th Street, N.W.-
i The Cleveland Electric Washington, D.C. *20005 Illuminating Company 55 Public Square Edward A. Matto, Esq.
Cleveland, Ohio 44101 Richard M. Firestone, Esq.
Karen H. Adkins, Esq.
Leslie Henry, Esq.
Antitrust Section Michael M.~ Briley, Esq.
30 E. Broad Street, 8th Floor
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Roger P. Klee, Esq.
Columbus, Ohio 43215 Fuller, Henry, Hodge & Snyder P. O. Box 2088 Janes R. Edgerly, Esq.
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Toledo, Ohio 43604 Secretary and General Counsel L
Pennsylvania Power Company One East Washington Street Russell J. Spetrino, Esq.
- Thones A. Kayuha, Esq.
New Castle, Pa.
16103 Ohio Edison Company 47 North Main Street Paul M. Smart, Esq.
LAkron, Ohio 44308.
Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43604 L
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John Lansdale, Esq.
Michael D. Oldak Cox, Langford & Brown Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N.W.
21 Dupont Circle, N.W.
i Washington, D.C.
20036 Suite 550 Washington, D.C.
20006 Michael R. Gallagher, Esq.
630 Bulkley Building Alan P. Buchmann Cleveland, Ohio 44115 Squire, Sanders & Dempsey 1800 Union Commerce Building Steven B. Peri Cleveland, Ohio 44115 Winthrop, Stimson, Putnam
& Roberts 40 Wall Street New York, New York 10005 g
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R6y P/ Lessy, Jr./ '
Counsel for NRC Staff 9
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