ML20038A419
| ML20038A419 | |
| Person / Time | |
|---|---|
| Issue date: | 09/10/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-137, NUDOCS 8110290522 | |
| Download: ML20038A419 (9) | |
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e UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 September 10, 1980 SECY-A-80-137 COMMISSIONER ACTION Fy:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel i
Subject:
REVIEW OF ALAB-608 (IN THE MATTER OF HOUSTON LIGHTING AND POWER CO., TEXAS UTILITIES GENERATING CO.)
Facilities:
South Texas Project, Units 1 and 2 Comanche Peak Steam Electric Station, Units 1 and 2 Petitions for Review:
None received and none expected Review Time Expires:
September 22, 1980
Purpose:
To inform the Commission of an Appeal Board decision @ ich, in our opinion, C/,5
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Discussion:
In ALAB-608, the Appeal Board declined to grant petitions for directed certification on a discovery question.
The applicants sought review of a Licensing Board order granting a joint motion by the Justice Department and the NRC staff to compel production of certain documents in the applicants ' possession.
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The Board cited three bases for its decision not to entertain the interlocutory appeal:
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The NRC staf f and DOJ sought studies conducted for the applicants which assessed the feasibility and cost of interconnections between the Texas Interconnected Systems and the Southwest Power Pool.
Both the staff and DOJ contend that these studies contain information relevant to the proceeding not available elsewhere.
i Contact-William M. Shields, OGC 7
x43224 Informr. tion in this reccrd was Eded
'C n in accordrce with the fredc' cf ln'ctmation ggo29092.
Act, exemptions rom. _f&ru x
y The Commissioners 2
9-(1)
Precedent showing that discovery rulings are not generallyLreviewed on an
. interlocutory basis;-(2)
Neither of the tests governing. discretionary interlocu-l tory review set out'in an= earlier case' had been met, 'i.e.,. 'no irreparable harm had been 'shown and the ruling did not affect the basic structure of-the pro-See Public Service Co., of Indiana
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ceeding, TlT Nuclear Generating Station,-
(Marble H Units 1 and 2), ALAB-405, 5 NRC 1192 (1977); and (3). the Licensing: Board 's -
order was. not.so clearly _ erroneous that manifest injustice..
gy,g; review would be necessary to avoid-b Recommendation:
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James A. Fitzgerald Assistant General Counsel
Attachment:
ALAB-608
3 Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Monday, September 22, 1980.
Commission Staff Office comments, if any, should be submitted to the-Commissioners NLT September 16, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTI0tl Commissioners Commission Staff Offices Secretariat
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARD 1
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Alan S. Rosenthal, Chairman
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E'ach Thomas S. Moore f
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f, 'y In the Matter of
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l HOUSTON LIGHTING & POWER COMPANY, ~et al.
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Docket Nos. 50-498A
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50-499A
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(South Texas Project, Units 1 and 2)
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TEXAS UTILITIES GENERATING COMPANY, et al.)
Docket Nos. 50-445A
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50-446A (Comanche Peak Steam Electric Station,
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Units 1 and 2)
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Messrs. Joseph B. Knotts, Jr., and C.
Dennis Ahearn, Washington, D.C.,
for the Texas-Utilities Generating _ Company.
Messrs. J. A. Bouknight, Jr., and. Douglas G.
Green,- Washington,-D.C., for the Houston Lighting & Power Company.
Mr. David M. Stahl, Washington,.D.C., for-Central and South West Corporation, et al_.
Ms. Susan Braden Cyphert and Messrs. David A.
Dopsovic and Kenneth M. Glazier for the United States Department of Justice.
Messrs. Joseph Rutherg, Frederic D. Chanania and Michael B. Blume and Ms. Ann P.
Bodgdon for the Nuclear Regulatory Commission s.taf f.
MEMORANDUM AND ORDER August 22, 1980 (ALAB-608) 1 e
1
Before us are three renewed petitions for directed certifi-cation, b/ seeking review of a March 7, 1980 oral ruling in this f
antitrust proceeding involving the South Texas and Comanche Peak nuclear facilities.
The ruling granted a joint motion of the Department of Justice and the NRC staff to compel the production of certain documents in the petitioners' possession. 2 /
Filed by, respectively, Texas Utilities Generating Company;
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Houston Lighting and Power Company; Central and South West Corporation, et al.
The directed certification petitions were initially filed 2/
On March 27, shortly after the oral ruling had issued.
1980, we heard argument on them.
Thereafter, we announced that action on the petitions was being deferred by reason of the then pendency of negotiations among the parties looking to the possible settlement of the underlying anti-trust dispute (which, if fully successful, would have served to moot the discovery controversy).
1980, the Licensing Board advised us by memo-On July 16, randum that it wished to reconsider its March 7 ruling.
To accommodate this desire, in an unpublished July 18 or-der we denied the directed certification petitions without prejudice to their resubmission following the Licensing Board's determination on reconsideration.
On August 8, that Board held a prehearing conference at which counsel were heard on the matter.
On August 13, it entered an or-der in which it adhered to the prior discovery ruling.
The directed certification petitions were thereupon re-newed.
Although settlement negotiations appear to remain in prog-ress, we have concluded that it is best to rule upon the petitions without further delay.
While the negotiations to date have been fruitful, the possibility exists that they will not produce agreement on all outstanding issues and that, th ere fo re, an evidentiary hearing on some matters will be required.
Under the terms of the Licensing Board's that hearing will commence on November 5, August 13 order, 19 80 and summaries of the testimony to be adduced will be In those circumstances, the dis-due three weeks earlier.
covery controversy is now deserving of prompt resolution.
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The petitions are denied for the following reasons:
As a general matter, discovery rulings of li-1.
censing boards are not prondsing candidates for the exercise of our discretionary authority to review interlocutory orders.
Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 768-69 (1975); see also, Lonc Island Lighting Co. (James-port Nuclear Power Station, Units 1 and 2), ALAB-318, 3 NRC 186, 187 (1976).
"Almost without exception in recent times, we 2.
have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and seri-ous irreparable impact which, as a practical matter, af-could not be alleviated by a later appeal or (2) fected the basic structure of the proceeding in a perva-sive or unusual manner".
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-405, 5 NRC 119.0, 1192 (1977) (footnote omitted).
The ruling in question here does not meet either of Obviously, it affects the basic struc-these tests.
ture of the proceeding not at all.
Insofar as the
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threat of irreparable injury to the petitioners is concerned, suf fice it to say that the ruling does not go to the matter of the admissibility into evi-dence of the documents covered by it.
Should the Licensing Board ultimately allow the introduction of one or more of those documents over their objec-tion, the petitioners will have the right to com-plain of that action in connection with any appeal which they might take from the ensuing initial decision. 3/
3.
Without passing ultimate judgment on the merits of the ruling below, a preliminary consid-eration of the arguments of the petitioners leaves us unpersuaded that it was so plainly erroneous that our intercession is required in order to avoid the possible working of a manifest injustice upon the petitioners.
1980 order (at p. 3), the Licensing In its August 13, 3/
Board stated that the documents "may be the subject of a protective order upon an appropriate showing of a need for confidentiality, including ~in camera inspec-tion if requested * * *".
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It is so ORDERED.
FOR THE APPEAL BOARD
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,C. Je p-Bishop--
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Secretary to the Appeal Board By reason of the denial of the renewed petitions, the stay of the effectiveness of the March 7 oral discovery ruling 4/
is terminated.
See our unpublished August 14, 1980 memo-randum at p. 2.
Michael C. Farrar was previously a member of this. Board and participated in the initial. consideration of the peti-tions as well as in our July 18, 1980 order (see'fn.
2, supra).
Effective August 16, 1980 (prior to the renewal of the petitions on August '19), Mr. ' Farrar ' resigned his position as a permanent legal member of'the Appeal boards to which he was then assigned.
The parties were-advised on August 14 that Mr. Farrar would-no' longer serve if re-on the Appeal Board for this proceeding and that, newed, the petitions would be ruled upon by the-remaining No objection members of the Board under the quorum rule.
In the event that subse-to this procedure was recorded.
quent Licensing Board action in the proceeding should come before thi's Board for review, another-Appeal Panel member will be designated to serve in Mr. Farrar's stead.
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