ML20058A578
| ML20058A578 | |
| Person / Time | |
|---|---|
| Issue date: | 10/09/1981 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AII, TASK-SE SECY-81-587, NUDOCS 8201110151 | |
| Download: ML20058A578 (3) | |
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-+ s, re 1 f aieg'*% / ~ SECY-81-587 [ j October 9, 1981 i l %,.... * / ADJUDICATORY ISSUE (Information) The Commissioners .For: From: Martin G. Malsch Deputy General Counsel Subiect: Pacific Gas & Electric Co.'s Notice of Prematurity and Advice of Withdrawal in Stanislaus (Antitrust) To inform the Commission regarding our
Purpose:
intention to have the Secretary direct the subject notice to the Licensing Board for any necessary action. Discussion: By order of July 13, 1981 (attached) the Licensing Board denied Pacific Gas & Electric Co. 's (PG&E) request to certify to the Commission 1/ its deci- ~ sion denying the joint motion of PG&E and the staff to suspend discovery. f., formation in this record was de!cted
- xcordance w;th the freedem o! !nfermation on September 18, 1981 Pacific Gas & Electric Co.
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'iled with the Commission a Notice of Prematurity g:,g. y _fg and Advice of Withdrawal (Attachment 2). That document purports to withdraw as " premature" PG&E's participation in the antitrust proceeding. 2 B201110151 930422 h our view ) g---- PDR FDIA CILINSK92-436 PDR 1/ The Board treated the request as one for certification to the Appeal Board under 10 CFR 2.788(b)(1). [ 2/ Withdrawal by PG&E would as a practical matter terminate the ~ proceeding. Termination of a Commission proceeding may not be ef f ected unilaterally by a participant. A decision must be made whether withdrawal is with or without prejudice and i this involves the interests of other parties besides applicant. SECY NOTE: In its June 29, 1981 decision on SECY-81-373, the Commissio: authorized the Secretary to issue orders, without Commission affirmatic: to redirect pleadings erroneously filed with the Commission to the appropriate board. Pursuant to this authorization, the Secretary inten: to 4 sue the proposed Memorandum and Order at Attachment 3 by 10/16/81. U dtt Ot K32 b rcn W , /,/]F) Dj //P L wr i uv: y t L i, nf p i,, 7 f 'l U c:: V
2 l~ l / / J Recommendation: ') ' i l Mar tin G. Malsch Deputy General Counsel Attachments: 1. July 13, 1981 order 2. Notice of Prematurity and Advice of Withdrawal 3. Draft order i Distribution: Commissioners Commission Staff Offices l CONTACT:' Marjorie Nordlinger (OGCh 41493
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p1~ UNITED STATES OF AMERICA E .y gm g NUCLEAR REGULATORY COMMISSION m ATOMIC SAFETY AND LICENSING BOARD jut i 51981
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Before Administrative Judges: 6 Oc:$224 & W / Marshall E. Miller, Chainnan L[ Sheldon J. Wolfe 4 im Seymour Wenner N 1 M VED Jyb 20JSg In the Matter of } PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. P-564-A (Stanislaus Nuclear Project, Unit No. 1) ) July 13, 1981 ) MEMORANDUM AND ORDER Pacific Gas and Electric Company (PG&E) has requested the Board to certify "to the Commission" its decision denying the joint motion of PG&E gg and the Commission's Staff (Staff) to suspend discovery (and in effect all proceedings) in this antitmst review until after final disposition in the courts of the litigation concerning the constitutionality of certain California statutes, whose effect would be to practically prevent PG&E from constructing a nuclear plant. We treat this request as a motion for certification to the Atomic Safety and Licensing Appeals Board, under 10 CFR 2.785(b)(1). Our previous decision was grounded on these factors: 1. PG&E's unequivocal representation that it intends to build the Stanislaus nuclear plant, if legal obstacles raised by the California statutes are removed. G-U 4\\6TWME~
.g. 2. The disruption of the imense effort and expenditures that have been made in organizing and training the teams of lawyers, paralegals and technical experts who are handling the discovery operation: a million and a half pages of documents have already been produced and are being analyzed, with some two and a half million more pages expected to be selected and studied. If discovery were now to be suspended, these teams who are familiar with the myriad details, issues and problems of this case would be dispersed. Reconstitu-ting new teams several years hence, in the event of a favorable Supreme Court decision, would require duplication of time, effort and substantial funds, I ~ with a Toss in the efficiency of document search and analysis that comes from several years of cunalative experience. 3. The willingness and capability of the Intervenors to pursue this proceeding on their own. Staff can reduce it: participation if it so chooses,1/ and devote its resources to what it regards as its higher priority licensing responsibilities. t 1/ n its Answer to PG&E's request for certification, Staff states that it I "does not intend to withdraw from this proceeding if suspension is denied.... Rather, it is Staff's present intention to participate in the discovery phase of the proceeding to the extent possible, comensurate with its existing manpower and budget limitations, absent modification of the ? Board's order of June 9, 1981."
11 [ - Our consideration of the voluminous record in this case as well as experience with complex and extended economic and technical litigation of this type, persuaded us that a lengthy and indefinite suspension of discovery would be wasteful to all parties and unfair to the Intervenors. We find, moreover, that the best estimate of time is that if discovery proceeds at its current rate, the antitrust review will be completed about the same time as PG&E states it will need a construction permit for Stanislaus. The only new argument raised by PG&E in the current request is: Staff's withdrawal from participation damages PG&E because Staff might change its mind in the future and " recommend" that a hearing in this case should not have been instituted. The decision to grant or continue this hearing is a quasi-judicial decision of the Board, not that of a party litigant - Staff. In any event, we do not see that Staff's withdrawal from or diminution of further participation, perhaps affecting the possibility that it might eventually switch to support PG&E, so prejudices PGLE that this i proceeding should be suspended.S/ We have reviewed our previous decision in the light of PG&E's request I and we believe it wa; sound. We see no reason now to certify our decision i for appeal. It does not threaten immediate serious and irreparable harm t to PG&E and it does not affect the basic structure of the proceeding in a S/At the May 5,1981 conference, Staff counsel stated, "We have always viewed the monopolization charge as well as other anticompetitive allegations against PG&E extremely seriously and we have not changed our position on the merits of those antitrust issues today" (Tr. 2944). r
j g~ [ .w pervasive or unusual manner. (See e.g. Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-637,13 NRC __ (1981); Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533 (1980).) It merely requires that litigation that has been in process for several years continue.2/ In sum, we find that, on balance, suspension of discovery with its consequences of dispersal and reconstitution of the litigation teams if the Supreme Court decides in PG&E's favor, would entail greater detriment to the parties and the public than continuation of the ongoing proceeding. And after all, as we noted in our earlier order, two lower federal courts have sustained PG&E's position on the.unconsti.tutjonality.pf..the_ California statutes. r For all these reasons, PG&E's request for certification of the Board's decision denying the Board's motion for suspension of discovery is denied. 2/. Myers v.' Bethlehem Shipbuildino Corp., 303 U.S. 41 (1938). Cf Respond-ing to the argument that the mere holding of a prescribed administrative hearing would result in irreparable damage, the Supreme Court stated, " Lawsuits also often prove to have been groundiess; but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact" at 51-52. j \\ I
-@ \\ ORDER For all the foregoing reasons and on consideration of the entire record in this matter, it is this 13th day of July 1981 ORDERED That the request of PG&E for certification of the Board's decision denying the motion for suspension of discovery be denied. THE ATOMIC SAFETY AND LICENSING BOARD Sheldon JE Wolfe ADMINISTRATIVE JUDGE =h Os N s w xb M cb Sey/ourWenner ADMINISTRATIVE JUDGE A <fK k.arshall E. Miller, Chairman ADMINISTPATIVE JUDGE ( e W -e
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g h. LENMC' UNITED STATES OF. AMERICA ldh 65.= 2 I I9N. NUCLEAR REGULATORY CO.vl1ISSION C Mee :l:he Sac c ! Cecum! 1 kr.:: .oas x z.:a / ~In the.Na tter of ) Docket No. P-564.' n sta ) [.? h* PACIFIC GAS AND ELECTRIC CCMPANY, ) NOTICE OF PREMRTURITL,,/A.', (Stanislaus Nuclear Project, ) AND ADVICE OF'JITmJGI ?d ;i Units 1 and 2. )
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~ On July 11, 1975, Pacific Gas and Electric Cocoanv /! 5 ~, -i (PGandE) provided to the Commission "Information Recuested'#' - i by the At cIney General for Antitrust Review." That inf0r-ma:icn was furnished pursuant to 10 CPP. 50. 33 (b), which calls for a potential applicant for a nuclear constructicn r permit to file such information with the Cc= mission not more than thir y-six ner less than nine months prior to its submittal of any part of its application for a construe:_cn [ permit. At the time, PGandI antic pated becoming an applican: for a construction permit for what was identified as the 'I "5 2 4.slaus Nuclear Project" within the me period specified i n _. - -agulation. No construction permit applicaticn has ever been h filed for the Stanislaus Project. Further, over time, the r prospects for the project have changed. Because of certain restrictive legislation passed by the State of California L and challenged by PGandE, the viability of any yet to be )go g ^ constructed nuclear facility in California is in doubt. The I I litigation concerning those statutes is.not finally resolved e and no 'aw nuclear construction will be undertaken by PGandE I -,so,22er62-stevis 'PDR PROJ q 564N PDR / k 3 m ~ m
~ until that problem is eliminated. Also, PGandE's loads and its projected needs have changed so that the need for a 'I facility like the Stanislaus plant is now viewed as some fif teen years off in the future. Accordingly, independent of the outcome of the litigation concerning the California legislation, PGandE has no plan to apply for any construction permit relating to the Stanislaus site fer another eight years. Because no permit application has been filed, no A Omic Safety and Licensing Board with authority to license ) a Stanislaus facility has ever been convened. The only pr: cess ever undertaken in this docket has been a pre-ac. c. lication antitrus t review controlled by a scard specially l t convened for that purpose. The Attorney General's advice, rendered in 1976, was to the effect that such a review was unnecessary. PGandE has continued to cooperate in discovery t related to this review for some time. The cost in persennel and equipment required to produce the enormous volume of documents covered by demands made by various intervenors and endorsed by the assigned antitrust Safety and Licensing Board, has been extensive and burdensome. In view of the uncertainty engendered by California's restrictive legisla-tion and the remoteness in time of any actual application, i the expense of continued participation in this costly exercise is no longer justified. i i i
g In an effort to accommodate all conce:rned, PGandE ( attempted, by a motion in which it was joined by the NRC Staff, to suspend the discovery process so as to coordinate that process more sensibly with both the ongoing litigation f over California's nuclear laws and with the changes in the timing of the Company's resource plan. That effort was t rebuffed by intervenors and rejected by the antitrust review Board. A recuest to certify the issue of suspension to the Appeals Soard was also denied. r This will serve formally to advise the Co. mission p that if pending litigation over state controls is determined r t adversely, no project will be constructed that due to changed circumstances PGandE has no plans for seeking a i construction permit for the Stanislaus Project until a point t well beycnd that set for initiating an antitrust review; and that, accordingly, ?GandZ is withdrawing its participation in this pre-application docket. Since there seems to be no r established protocol fer advising the Commission that a pre-appiteation proceeding has become premature and is being withdrawn, this notification is provided in the same format as the July 11, 1975 information that initiated the process. i PGandE will seek to make orderly arrangements for the return e
1 3 4 Y or preservation of discovery material. Respectfully submitted, PACIFIC GAS AND LLECTRIC CCMPANY t By Y d b,Y'~Y MALCOLM H.
- FURBUSH, Senior Vice President and
'l General Counsel ROBERT OHLBACH PHILIP A. CRANE, JR. "C'F. TALLIN, ?R. r l l k l/ ', O ~ l C/M PH LNF % b?ANE, J R. ~~ l ll \\ Septerber la, 1981. _4_
1 i CERTIFICATE OF SERVICE BY MAIL t Virginia Rundell, hereby certifies that she is not a party to the within cause; that her business address is 77 Beale Street, San Francisco, California, 94106; and that she caused an envelope to be addressed to each of the 't following named persons, enclosed and sealed in each envelope a copy of the foregoing document and deposited each envelope l with postage thereon, fully prepaid, in the United States mail at San Francisco, California, on September 13, 1981: r s Eencrable "hanas L. Ecwe George Spiegel, Esq.
- &.inistrat.ve Iza Judge Robert C. McDiscid, Esq.
Federal Energy Regulatorf Carinissicn Daniel I. Davidson, Esq. 825 ! brth Capitol Street, N.E. Thcras C. Trauger, Esq. Washing cn, D.C. 20426 Spiegel & Mccia=id 2600 Virginia Avenue,::.*4 Washington, D.C. 20037 2cckettng and Ser/ ace Section Marshall E. Miller, Chai=an t Office of tne Secretary Atmic Saferf a.M licensig Board U.S..Vaclear Recalator/ Comissicn U.S. Nuclear Recalatorf Carission Washingt n, D.C. 20535 Washington, D.C. 20555 Steve. R. C0 hen, Esq. Jertrae Salt =an, C'def 1 Edsard J. Terhaar Antit:1.st & I..sr.irf Group M De;:ar ent of Water Resources U.S. Nuclear Regulaterf Carission 1416 - 9*n Street Washington, D.C. 20555 P. O. Sex 388 Sacramente, C;. 95802 i Atmic Safety and Licensirs F: card Panel Dcrald A. Kaplan, Esq. U.S. Nuclear Regulatorf Cardssicn Antitrast Division Washirston, D.C. 20555 U.S. Department of Justice Washingt n, D.C. 20530 Sandra J. Strebel, Esq. Seyocur Wenner, Esq. Peter K. Matt, Esq. Atmic Safety a.M Licensi.g Ibard Bonnie S. Blair, Esq. 4807 }brgan Drive Spiegel & McDia=nid Devy case, Maryla.M 20015 2600 Virginia Avenue, N.W. l Washington, D.C. 20535 i j 4 i i + e
3 Sheldon J. Wolfe, Esq. Joseph Rut h93, Esq. At:mic Safety axd Lice.. sing Board Benjamin H. Vogler, Esq. U.S. Nuclear Regulatcry Ccnmi.csion Jack R. Goldberg, Esq. Washington, D.C. 20555 Ann P. '-bdgdon, Esq. NRC Staff Ccunsel U.S. Nuclear Begulatorf Ccrrission WashLngton, D.C. 20555 Michael J. Straasser, Esq. E. Chester Horn, Jr., Esq. Deputy Attorney General of California Deputy Attornef GenaM 3580 Wilshire Blvd., Suite 600 3580 Wilshire Blvd., Sui *a 800 Ics Angeles, CA 90010 Los Angeles, CA 90010 Clarice Tu=ef, Esq. Cffice of the City Attocef 3900 Main Stree: Riverside, CA 92521 Ynaae asedML ARGfNIA EUNDELL i i l l l I i l I i
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