ML19351C886
| ML19351C886 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 10/06/1980 |
| From: | Ahearn C, Knotts J DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8010080289 | |
| Download: ML19351C886 (9) | |
Text
q ;m,
7,3 p ;
s s.
~L, k
-9 UNITED STATES OF AMERICA C
'A NUCLEAR REGULATORY COMMISSION E'
s In the Matter of:
)
HOUSTON LIGHTING AND POWER CO.,
)
Docket Nos. 50-490A et al.
)
50-499A
)
(South Texas Project, Units
)
1 and 2)
)
)
1 TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, et al.
)
50-446A 1
)
-~
(Comanche Peak Steam Electric
)
{
Station, Units 1 and 2)
)
MOTION OF TEXAS UTILITIES GENERATING COMPANY l
TO STRIKE REFERENCES TO COMANCHE PEAK IN BROWNSVILLE'S SEPTEMBER 25, 1980 MOTION On September 25, 1980, the Public Utilities Board of the City of Brownsville, Texas ("Brownsvillo") filed a O
n these consolidated proceedings commenting pleading i
upon the proposed license conditions for each facility, mov-ing for disapproval of those conditions, and requesting that the Licensing Board order that further proceedings be had.
Texas Utilities Generating Company ("TUGCO") respectfully sub-mits that Brownsville does not have the requisite standing to challenge the proposed Comanche Peak license conditions and respectfully requests that all references in Brownsville's September 25, 1980 papers to the comanche Peak proceeding and/or license be stricken.
l_/
" Motion By The Public Utilities Board Of The City Of Brownsville, Texas For Disapproval Of Proposed License Conditions; Comments Opposing Proposed Li-cense Conditions; And Request For Further Proceedings."
8010080 2V?
H
4 Although Brownsville is an intervenor in the South Texas proceeding, it has never, despite specific warnings concern-ing the failure to do so (and a half-hearted, patently defective request to become a party'as alternative relief),
become a party in Comanche Peak.
The fact that these 2/
At the December 5, 1978 prehearing conference, Mr.
.Tablon admitted that Brownsville was not a party to the Comanche Peak proceeding when he stated that "since we are only'in one proceeding we would hope
[that Brownsville could cross-examine the witnesses of other parties or the Board would entertain a late intervention petition at the hearing]." (Tr. at p.
61-62).
He was "not seeking to get into the other proceeding late" but only to protect his rights should there be a witness he wished to cross-examine.
(Tr. at p. 62).
He was then specifically warned by Mr.
Glaser that:
j If you have any idea about intervening, you better do it now, because I can assure you you will have one vote against you if you file a petition to intervene in the middle of the case, and that vote will be mine.
(Tr, at p. 62).
On March 2, 1979, TUGCO filed objections to Browns-ville's interrogatories, stating that Brownsville was not an intervenor in Comanche Peak, while both TUGCO and Brownsville were intervenors in the South Texas proceeding.
While the Board required TUGCO to respond, it did not change Brownsville's party status.
Order of March 23, 1979.
Finally, on March 17, 1980 Brownsvi21e filed its comments on the issue of consolidation, and proposed that it be admitted as a party to the Comanche Peak proceed-ing, if its concerns about preserving its right of cross-examination in the event of consolidated pro-ceedings could not be assured.
The Board did not rule on this request, apparently agreeing with (Footnote continued on 'next page)
. two proceedings were consolidated does not in any way make Brownsville a party to the Comanche Peak proceeding or l
give it any rights which it previously did not have.
The l
Supreme Court has long since laid to rest any doubts in this regard:
(T)he consolidation did not alter the nature of the attack.
Under the statute, 28 U.S.C.
$ 734, consolidation is permitted as a matter of con-venience and economy in administration, but does not merge the suits into a single cause or change the rights of the parties, or make those who are parties in one suit parties in another.
Johnson ManhattanRailwayCompany,3pB9U.S. 479, v.
77 L.Ed. 1331 (1932).-
(emphasis added).
496-97, i
?
[2/ con't from p. 2]
2/
TUGCO that what cross-examination by Brownsville of TUGCO witnesses would be appropriate (it seems obvious that Brownsville could cross any TUGCO witness in South Texas) and for what purposes would best be left to case-by-case rulings.
None of these incidents involved the filing an even super-ficially adequate (under the Rules of Practice) pe-tition for intervention by Brownsville, and Browns-ville has never become a party to the Comanche Peak proceeding.
3/
This case has been consistently followed by the fed-eral courts.
For a recent example, see State Mutual Life Assurance Company of America v.
Deer Creek Park, 612 F.2d 259 (6th Cir. 1979).
There the Court was faced with a situation in which a third party was challenging a settlement agreement between two other parties and the Court held that its agreement to the stipulation of settlement between the other two parties was unnecessary, stating:
Although the language of the stipulation of State Mutual and Deer Creek appears to deal with the !.itigation as a single action, we do not believe that consolidation of State Mutual's (Footnote continued on next page)
' i These two proceedings were consolidated under the provisions of 10 CFR { 2.716 for discovery and the evi-dentiary hearing in order to conserve the resources of all concerned and. expedite the proceedings before the Licensing Board. The cases were not merged, and t'te sub-stantial rights of the parties in each individual proceed-t l
[3/ con't from p. 3]
l!
foreclosure action with Deer Creek's removed state court action caused a merger precluding l
the independent settlement of claims between
]
State Mutual and Deer Creek Park.
Rather, each suit maintained its independent status with re-3 j
spect to the rights of the parties involved.
)
i (Citing Johnson v. Manhattan Railway Company)...
l We, therefore, consider the effect of the Stip-
- ulation of Settlement in light of the separate character of the consolidated actions.
612 F.2d at 267.
The Court then found that the third party did not have a basis upon which to challenge the settlement.
See also National Nut Company of California v. Susu Nut Company, 61 F.Supp, 86 (N.D.Ill.E.D. 1945).
That court also stated that consolidated proceedings maintain their separate identity and that "the pleadings in one case cannot be made the pleadings in the other." 61 F.Supp. at 88.
l t
i
~
, ing were not changed.S!
Since Brownsville did not intervene in the Comanche Peak proceeding, its participation is not more f
than is provided by the terms of 10 CFR { 2.715 (" Par-l ticipation by a person not a party"), which reads as follows:
(a)
A person who is not a party may, in the dis-cretion of the presiding officer, be per-mitted to make a limited appearance by making oral or written statement of his position on the issues at any session of the hearing or any prehearing conference within such limits and on such conditions as may be fixed by the presiding officer, but he may not otherwise partir.ipate in the proceding.
(emphasis add
.s.
Brownsville has no right to insist upon its consent as a precondition to approval of the settlement agreement in Comanche Peak.
See, State Mutual Life, supra, footnote 3.
Insofar as the Comanche Peak proceeding is concerned, Brownsville's motion of September 25, 1980 is an unauthorized 4/
Professor Moore states:
]
Merger is never so complete even in consolidation as to deprive any party of any substantial rights which he may have possessed had the actions pro-ceeded separately.
The actions retain their sep-arate identity, and the parties and pleadings in one action do not' automatically become parties and j
pleadings in the other action.
5 Moore's Federal Practice T 42.02 at 42-21 through 1
l 42-22 (2d Ed. 1979).
l
'l m
. pleading and should be stricken.
See Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-294, 2 NRC 663, 664 (1975) and Easton Utilities Commission v. Atomic Energy Commission, 424 F.2d 847, 850-52 (D.C. Cir. 1970) (en banc) where analogous unauthorized pleadings were ordered stricken.
Wherefore, TUGCO respectfully moves that all ref-erences to the Comanche Peak proceeding and/or license contained in Brownsville's September 25, 1980 pleading be stricken.
Respectfully submitted, s,
e*
ose h B.
Knotts, Jr.
ennis Ahearn DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 Attorneys for Texas Utilities Generating Company October 6, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
^
l In the Matter of-HOUSTON LIGHTINO2AND POWER CO.,
)
Docket Nos. 50-498A et al.
)
50-499A
)
(South Texas Project, Units
)
l e d 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, _et _al.
)
50-4?.%
)
(Comanche Peak Steam Electric
)
' Station, Units 1 and 2)
)
1 CERTIFICATE OF SERVICE
)
I hereby certify that copies of " Motion of Texas Util-ities To Strike References To Comanche Peak In Brownsville's September 25, 1980 Motion" in the above captioned matters, j
were served upon the following persons by deposit in the United States mail, first class postage prepaid or by hand delivery as indicated by an asterisk this 6th day of October, 1980.
- Marshall E. Miller, Esq.
Mr. Jerome D.
Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C.
20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory
- Michael L.
Glaser, Esq.
Commission j
1150 17th Street, N.W.
Washington, D.C.
20555 l
Washington, D.C.
20036 J. Irion Worsham, Esq.
- Sheldon J. Wolfe, Esq.
Merlyn D.
Sampels, Esq.
U.S. Nuclear Regulatory Spencer C.
Relyea, Esq.
Commission Worsham, Forsythe & Sampels Washic.gton, D.C.
20555 2001 Bryan Tower, Suite 2500 Dallas, Te::as 75201 Atomic Safety and Licensing Appeal Board Panel Jon C. Wood, Esq.
U.S. Nuclear Regulatory W.
Roger Wilson, Esq.
Commission Matthews, Nowlin, Macfarlane &
Washington, D.C.
20555 Barrett i
1500 Alamo National Building Chase R.
Stephens San Antonio, Texas 78205 Docketing and Service Branch U.S. Nuclear Regulatory Dick Terrell Brown, Esq.
Commission 800 Milam Building Washington, D.C.
20555 San Antonio, Texas 78205
Charles G. Thrach, Jr., Erq.
- Robart Fabrikant, Esq.
E.W. Barnett, Esq.
Rangeley Wallace, Esq.
Theodore F. Weiss, Esq.
David A.
Dopsovic, Esq.
J.
Gregory Copeland, Esq.
Frederick H. Parmenter, Esq.
Baker & Botts Nancy Luque, Esq.
3000 One Shell Plaza Kenneth M. Glazier, Esq.
~
Houston, Texas 77002 Mildred L. Calhoun, Esq.
Nancy H. McMillen,'Esq.
Steven _R. Hunsicker, Esq.
U.S. Department of Justice R.Gordon Gooch, Esq.
Antitrust Division John P. Mathis,'Esq.
P.O. Box 14141 Baker & Botts.
Washington, D.C.
20044 1701 Pennsylvania Avenue, N.W.
f.r; d
. ; ?.. '.
4 Washington, D.C.
20006 Jerry.L. Harris, Esq.
~
Richard C. Balough, Esq.
- Fredric D. Chanania, Esq, City of Austin Michael B..Blume,'Esq.
P.O. Box 1088 Stephen H. Lewis, Esq.
Hodgdon, Esq.
U.S. Nuclear Regulatory Robert Lowenstein, Esq.
Commission
- J.A. Bouknight, Jr., Esq.
Washington,.D.C.
20555 William J. Franklin, Esq.
Douglas G. Green, Esq.
Mr. Roff Hardy Lowenctein, Newman, Reis, i
Chairman and Chief Executive Axelrad and Toll Officer 1025 Connecticut Avenue, N.W.
j Central Power'and Light Company Washington, D.C.
20036 P.O. Box 2121' Corpus Christi, Texas 78403 John W. Davidson, Esq.
j Sawtelle, Goodo. Davidson &
Mr. Perry G. Brittain Tioilo President 1100 San Antonio Savings Bldg.
Texas Utilities Generating-San Antonio,' Texas 78205 Company 2001 Bryan Tower Douglas F. John, Esq.
Dallas, Texas 75201 McDermott, Will and Emery 1101 Connecticut Ave., N.W.
Mr. R. L. Hancock, Director Suite 1201 Ci'y of Austin Electric Utility-Washing. ton, D.C.
20036 t
P.O. Box 1086 Austin, Texas 78767 Bill D.
St. Clair, Esq.
Morgan. Hunter, Esq.
Mr. G.W. Oprea, Jr.
McGinnis, Lockridge & Kilgore Executive Vice President Fifth Fl'. Texas State Bank Bldg.
Houston Lighting & Power 900 Congress Avenue Company Austin, Texas 78701 P.O. Box 1700 Houston, Texas 77001
- David M.
Stahl, Esq.
Isham, Lincoln & Beale Don R.
Butler, Esq.
1120 Connecticut Avenue, N.W.
211 East Seventh Street Suite 325 Austin, Texas 78701 Washington, D.C.
20036 l
l 1
' ' ~ - -
w g----y.n-5
,_._9 y,
y
Mr. G. Holman King Sara Welling, Esq.
West Texas Utilities Co.
Michael I.' Miller, Esq.
P.O. Box 841 James A. Carney, Esq.
Isham, Lincoln & Beale Abilene, Texas 79604 One First National Plaza Kevin B. Pratt, Esq.
Suite 4200 Chicago, Illinois 60603 Attorney General,',s Office State of 'rexas P.O. Box 12548 Mr. Don H. Davidson Austin, Texas 78711 City Manager City of Austin P.O. Box 1088' Frederick H. Ritts, Esq.
- Willism H. Burchette, Esq.
Austin, Texas 78767 Northcutt Ely Mr. W.S.
Robson Watergate 600 Building Washington, D.C.
20037 General Manager South Texas Electric J. K.
Spruce, General Mahager
)
Cooperative, Inc.
Y Post Office Box 151
'P.O. Box 1771 Nursery / Texas. 77976 San Antonio, Texas 78296 Robert A. O'Neil', Esq.
- George Spiegel, Esq.
Miller, Balls & O'Neil,.P.C.
Robert C. McDiarmid, Esq.
776 Executive Building Robert Jablon, Esq.
1030 Fifteenth Street, N.W.
Marc Poirier, Esq.
Washington, D.C.
20005 Spiegel & McDiarmid 2600 Virginia Ave., N.W. Ste. 312 Washington, D.C.
20037 W.N. Woolsey, Esq.
Dyer and Redford h
j/
1030 Petroleum Tower Corpus Christi, Texas 78474
-U h F e C.
Dennis Ahearn Mr.. Donald M. Clements Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Marc J. Wetterhahn, Esq.
Robert M. Rader, Esq.
Conner & Moore 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Mr. William C. Price Central Power & Light Co.
P.O. Bor 2121 Corpus christi, Texas 78403
,.--n n-,
~
--._.,n,.--.m
,-,y
,, - -,.- - -, - _