ML20138H406
| ML20138H406 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/23/1985 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-915 OL, OL-2, NUDOCS 8510290032 | |
| Download: ML20138H406 (7) | |
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UNITED STATES OF AMERICA s.'
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In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445-OL and OL-2 COMPANY, et al.
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50-446-OL and OL-2
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(Comanche Peak Steam Electric
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Station, Units 1 and 2)
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APPLICANTS' BRIEF IN RESPONSE TO CONFERENCE qALL OF OCTOBER 15, 1985 In a conference call held October 15, 1985, the Boards ordered the parties to file a brief with respect to two matters.
Herein the applicants respond to that order.
Item 1 - The Statement The first itera as to which a response is required is the applicants' position with respect to the following statement:
"This is a single case (a) in which CASE's representatives should make a good faith effort to coordinate their discovery activities, (b) in which Applicants should provide more specific responses to discovery, identifying prior responses whenever they believe 8510290032 851023 PDR ADOCK 05000445 og-o eda i
they have been subjected to a redundant request and (c) in which objections as to relevance may not be restricted to relevance to a particular docket."
The first matter which merits discussion (and the resolution of which virtually controls any position on the remaining parts of the statement) is whether or not the major premise of the statement ("This is a single case") is correct.
The word " case" is defined in Black's Law Dictionary as:
"A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice."
(Emphasis added.)
By setting forth a portion of the foregoing definition with emphasis, applicants are focusing on that attribute of NRC proceedings which we believe to be most pertinent in analyzing the statement as a whole.
Whether or not what we have here is a single case (or in NRC parlance " proceeding")
being conducted by two different Boards or two proceedings conducted by two different Boards, one cannot gainsay the fact that there are two different Boards.
Each of these Boards is a tribunal of limited jurisdiction and in each case the limits of the jurisdiction given the Board by the Commission are as defined in the Federal Register notice of its establishment.
E.g.,
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167, 170-71 (1976); Wisconsin Electric Power
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i Co..(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983).
1 In the case of the Docket 2 Board, that jurisdiction is i
limited to "all allegations of intimidation or harassment".
That Board is without jurisdiction, i.e.,
without power, to deal with anything else.
Its actions airected at any 4
I subject other than allegations of intimidation and harassment are voidable if not void ab initio.
This means, as a matter of law, that the Docket 2 Board cannot rule on i
j discovery directed at matters not involving harassment and intimidation, and the Docket 1 Board is without power with respect to matters which do involve allegations of
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harassment and intimidation.
I While, at first blush, the rigid adherence to the l
jurisdictional principles outlined above may seem to be 4
hyper-technical and legalistic, such adherence, in addition to having the fortunate attribute of being legal, also will i
l have a beneficial practical effect in this proceeding.
If
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l the CASE personnel working on Docket 2 inadvertently propose an interrogatory which is not relevant to that docket,
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1 applicants will object and be sustained, the interrogatory I
may then be given over to the personne.1 working on Docket 1, I
who will have the necessary background to know whether (a) i i
the request is in fact duplicative of what has already been i
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requested in that docket and (b)'whether, assuming it is i
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not, pressing such an inquiry has value to CASE in that docket.
In addition, adherence to these jurisdictional principles avoids even the potential that the two Boards could arrive at different or inconsistent results on the same issue.
This would only occur, of course, after Applicants had been faced with prehearing and/or hearing procedures in the same matter raised by the same intervenor but before two different tribunals.
Turning now to the remainder of the statement and in light of the foregoing, it is the applicants position (and, indeed, assumption) that CASE should and will coordinate its discovery activities; if and when an occasional error is made and diecovery is requested in the wrong docket, applicants have a legal right to object and require formal refiling in the other docket and will continue to exercise that right.
Furthermore, applicants understand, and will meet their obligation to point out where the requested information has already been provided if the objection is one in the nature of " asked and answered".
Item 2.
The Prehearing Oral discussion of specific objections to discovery is generally an exercise in futility and a waste of the tribunal's time.
Objections should be made in writing and the discoveror should then make a motion to compel in the l
usual course in writing; the objector argues against the 4-
motion in writing and the Board rules.
10 CFR S 2.740(f).
In short, assuming adherence to the jurisdictional principles outlined above, and assuming there will not be oral argument before the Board on those principles and the Board will rule thereon there is no need, in our view, for a prehearing conference on specific discovery requests.
These as well as motions to reconsider etc. can be dealt with under the rules as required.
Respectfully submitted, Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 (214) 748-9365 Roy P.
Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, DC 20036 (202) 331-2706 Thomas G.
Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100
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.'l By h mas G. Dign K Jr. l
j CERTIFICATE OF SERVICE I, Thomas G.
- Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on October 23, 1985, I made service of the within document by mailing copies thereof, postage prepaid, to:
- Peter B. Bloch, Esquire
- Herbert Grossman Chairman Alternate Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
- Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W.
Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
- Stuart A. Treby, Esquire
- Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S.
Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission 7735 Old Georgetown Road Room 10117 Bethesda, Maryland 20814 l
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i
Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing En. ronmental Protection Division Board Panel P.O.
Box 12548, Capitol Station U.S.
Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C.
20555
- Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W.,
Suite 611 Suite 840 Washington, D.C.
20036 Washington, D.C.
20036
- Dr. Kenneth A. McCollom Mr. Lanny A.
Sinkin Administrative Judge 3022 Porter Street, N.W.,
- 304 Dean, Division of Engineering, Washington, D.C.
20008 Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74078
- Ms. Billie Pirner Garde Mr. Robert D. Martin Citizens Clinic Director Regional Administrator, Government Accountability Project Region IV 1901 Que Street, N.W.
U.S.
Nuclear Regulatory Commission Washington, D.C.
20009 Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth 3.
Johnson
- Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director-P.O.
Box X, Building 3500 U.S.
Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Mr. James E. Cummins Cygna Energy Services, Inc.
Resident Inspector 101 California Street Comanche Peak S.E.S.
Suite 1000 c/o U.S. Nuclear Regulatory San Francisco, California 94111 Commission P.O.
Box 38 Glen Rose, Texas 76043
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'T?iTmas G. DM, Jr.
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